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Justice Breyer

concurring

General Electric Co. v. Joiner

1997-12-15

https://www.courtlistener.com/opinion/118157/general-electric-co-v-joiner/

https://www.courtlistener.com/api/rest/v3/clusters/118157/

1997-011

The Court's opinion, which I join, emphasizes Daubert `s statement that a trial judge, acting as "gatekeeper," must "`ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.' " Ante, at 142 (quoting Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993)). This requirement will sometimes ask judges to make subtle and sophisticated determinations about scientific methodology and its relation to the conclusions an expert witness seeks to offer—particularly when a case arises in an area where the science itself is tentative or *148 uncertain, or where testimony about general risk levels in human beings or animals is offered to prove individual causation. Yet, as amici have pointed out, judges are not scientists and do not have the scientific training that can facilitate the making of such decisions. See, e. g., Brief for Trial Lawyers for Public Justice as Amicus Curiae 15; Brief for New England Journal of Medicine et al. as Amici Curiae 2 ("Judges . . . are generally not trained scientists"). Of course, neither the difficulty of the task nor any comparative lack of expertise can excuse the judge from exercising the "gatekeeper" duties that the Federal Rules of Evidence impose—determining, for example, whether particular expert testimony is reliable and "will assist the trier of fact," Fed. Rule Evid. 702, or whether the "probative value" of testimony is substantially outweighed by risks of prejudice, confusion or waste of time, Fed. Rule Evid. 403. To the contrary, when law and science intersect, those duties often must be exercised with special care. Today's toxic tort case provides an example. The plaintiff in today's case says that a chemical substance caused, or promoted, his lung cancer. His concern, and that of others, about the causes of cancer is understandable, for cancer kills over one in five Americans. See U. S. Dept. of Health and Human Services, National Center for Health Statistics, Health, United States 1996-97 and Injury Chartbook 117 (1997) (23.3% of all deaths in 1995). Moreover, scientific evidence implicates some chemicals as potential causes of some cancers. See, e. g., U. S. Dept. of Health and Human Services, Public Health Service, National Toxicology Program, 1 Seventh Annual Report on Carcinogens, pp. v—vi (1994). Yet modern life, including good health as well as economic well-being, depends upon the use of artificial or manufactured substances, such as chemicals. And it may, therefore, prove particularly important to see that judges fulfill their Daubert gatekeeping function, so that they help assure that the powerful engine of tort liability, which can generate *149 strong financial incentives to reduce, or to eliminate, production, points toward the right substances and does not destroy the wrong ones. It is, thus, essential in this sciencerelated area that the courts administer the Federal Rules of Evidence in order to achieve the "end[s]" that the Rules themselves set forth, not only so that proceedings may be "justly determined," but also so "that the truth may be ascertained." Fed. Rule Evid. 102. I therefore want specially to note that, as cases presenting significant science-related issues have increased in number, see Judicial Conference of the United States, Report of the Federal Courts Study Committee 97 (Apr. 2, 1990) ("Economic, statistical, technological, and natural and social scientific data are becoming increasingly important in both routine and complex litigation"), judges have increasingly found in the Rules of Evidence and Civil Procedure ways to help them overcome the inherent difficulty of making determinations about complicated scientific, or otherwise technical, evidence. Among these techniques are an increased use of Rule 16's pretrial conference authority to narrow the scientific issues in dispute, pretrial hearings where potential experts are subject to examination by the court, and the appointment of special masters and specially trained law clerks. See J. Cecil & T. Willging, Court-Appointed Experts: Defining the Role of Experts Appointed Under Federal Rule of Evidence 706, pp. 83-88 (1993); J. Weinstein, Individual Justice in Mass Tort Litigation 107-110 (1995); cf. Kaysen, In Memoriam: Charles E. Wyzanski, Jr., 100 Harv. L. Rev. 713, 713-715 (1987) (discussing a judge's use of an economist as a law clerk in United States v. United Shoe Machinery Corp., 110 F. Supp. 295 (Mass. 1953), aff'd, 347 U.S. 521 (1954)). In the present case, the New England Journal of Medicine has filed an amici brief "in support of neither petitioners nor respondents" in which the Journal writes: "[A] judge could better fulfill this gatekeeper function if he or she had help from scientists. Judges should be *150 strongly encouraged to make greater use of their inherent authority . . . to appoint experts . . . . Reputable experts could be recommended to courts by established scientific organizations, such as the National Academy of Sciences or the American Association for the Advancement of Science." Brief, supra, at 18-19. Cf. Fed. Rule Evid. 706 (court may "on its own motion or on the motion of any party" appoint an expert to serve on behalf of the court, and this expert may be selected as "agreed upon by the parties" or chosen by the court); see also Weinstein, supra, at 116 (a court should sometimes "go beyond the experts proffered by the parties" and "utilize its powers to appoint independent experts under Rule 706 of the Federal Rules of Evidence"). Given this kind of offer of cooperative effort, from the scientific to the legal community, and given the various Rules-authorized methods for facilitating the courts' task, it seems to me that Daubert `s gatekeeping requirement will not prove inordinately difficult to implement, and that it will help secure the basic objectives of the Federal Rules of Evidence, which are, to repeat, the ascertainment of truth and the just determination of proceedings. Fed. Rule Evid. 102. Justice Stevens, concurring in part and dissenting in part. The question that we granted certiorari to decide is whether the Court of Appeals applied the correct standard of review. That question is fully answered in Parts I and II of the Court's opinion. Part III answers the quite different question whether the District Court properly held that the testimony of plaintiff's expert witnesses was inadmissible. Because I am not sure that the parties have adequately briefed that question, or that the Court has adequately explained why the Court of Appeals' disposition was erroneous, I do not join Part III. Moreover, because a proper answer to that question requires a study of the record that can be *151 performed more efficiently by the Court of Appeals than by the nine Members of this Court, I would remand the case to that court for application of the proper standard of review. One aspect of the record will illustrate my concern. As the Court of Appeals pointed out, Joiner's experts relied on "the studies of at least thirteen different researchers, and referred to several reports of the World Health Organization that address the question of whether PCBs cause cancer." 78 F.3d 524, 533 (CA11 1996). Only one of those studies is in the record, and only six of them were discussed in the District Court opinion. Whether a fair appraisal of either the methodology or the conclusions of Joiner's experts can be made on the basis of such an incomplete record is a question that I do not feel prepared to answer. It does seem clear, however, that the Court has not adequately explained why its holding is consistent with Federal Rule of Evidence 702,[1] as interpreted in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).[2] In general, scientific testimony that is both relevant and reliable must be admitted and testimony that is irrelevant or unreliable must be excluded. Id., at 597. In this case, the District Court relied on both grounds for exclusion. The relevance ruling was straightforward. The District Court correctly reasoned that an expert opinion that exposure *152 to PCB's, "furans" and "dioxins" together may cause lung cancer would be irrelevant unless the plaintiff had been exposed to those substances. Having already found that there was no evidence of exposure to furans and dioxins, 864 F. Supp. 1310, 1318-1319 (ND Ga. 1994), it necessarily followed that this expert opinion testimony was inadmissible. Correctly applying Daubert, the District Court explained that the experts' testimony "manifestly does not fit the facts of this case, and is therefore inadmissible." 864 F. Supp., at 1322. Of course, if the evidence raised a genuine issue of fact on the question of Joiner's exposure to furans and dioxins—as the Court of Appeals held that it did—then this basis for the ruling on admissibility was erroneous, but not because the District Judge either abused her discretion or misapplied the law.[3] The reliability ruling was more complex and arguably is not faithful to the statement in Daubert that "[t]he focus, of course, must be solely on principles and methodology, not on the conclusions that they generate." 509 U.S., at 595. Joiner's experts used a "weight of the evidence" methodology to assess whether Joiner's exposure to transformer fluids promoted his lung cancer.[4] They did not suggest that any *153 one study provided adequate support for their conclusions, but instead relied on all the studies taken together (along with their interviews of Joiner and their review of his medical records). The District Court, however, examined the studies one by one and concluded that none was sufficient to show a link between PCB's and lung cancer. 864 F. Supp., at 1324-1326. The focus of the opinion was on the separate studies and the conclusions of the experts, not on the experts' methodology. Id., at 1322 ("Defendants . . . persuade the court that Plaintiffs' expert testimony would not be admissible . . . by attacking the conclusions that Plaintiffs' experts draw from the studies they cite"). Unlike the District Court, the Court of Appeals expressly decided that a "weight of the evidence" methodology was scientifically acceptable.[5] To this extent, the Court of Appeals' opinion is persuasive. It is not intrinsically "unscientific" for experienced professionals to arrive at a conclusion by weighing all available scientific evidence—this is not the sort of "junk science" with which Daubert was concerned.[6] After all, as Joiner points out, the Environmental Protection Agency (EPA) uses the same methodology to assess risks, albeit using a somewhat different threshold than that required in a trial. Brief for Respondents 40-41 (quoting *154 EPA, Guidelines for Carcinogen Risk Assessment, 51 Fed. Reg. 33992, 33996 (1986)). Petitioners' own experts used the same scientific approach as well.[7] And using this methodology, it would seem that an expert could reasonably have concluded that the study of workers at an Italian capacitor plant, coupled with data from Monsanto's study and other studies, raises an inference that PCB's promote lung cancer.[8] The Court of Appeals' discussion of admissibility is faithful to the dictum in Daubert that the reliability inquiry must focus on methodology, not conclusions. Thus, even though I fully agree with both the District Court's and this Court's explanation of why each of the studies on which the experts relied was by itself unpersuasive, a critical question remains unanswered: When qualified experts have reached relevant conclusions on the basis of an acceptable methodology, why are their opinions inadmissible? Daubert quite clearly forbids trial judges to assess the validity or strength of an expert's scientific conclusions, which is a matter for the jury.[9] Because I am persuaded *155 that the difference between methodology and conclusions is just as categorical as the distinction between means and ends, I do not think the statement that "conclusions and methodology are not entirely distinct from one another," ante, at 146, either is accurate or helps us answer the difficult admissibility question presented by this record. In any event, it bears emphasis that the Court has not held that it would have been an abuse of discretion to admit the expert testimony. The very point of today's holding is that the abuse-of-discretion standard of review applies whether the district judge has excluded or admitted evidence. Ante, at 142. And nothing in either Daubert or the Federal Rules of Evidence requires a district judge to reject an expert's conclusions and keep them from the jury when they fit the facts of the case and are based on reliable scientific methodology. Accordingly, while I join Parts I and II of the Court's opinion, I do not concur in the judgment or in Part III of its opinion.

The Court's opinion, which I join, emphasizes Daubert `s statement that a trial judge, acting as "gatekeeper," must "`ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable.' " Ante, at 142 ). This requirement will sometimes ask judges to make subtle and sophisticated determinations about scientific methodology and its relation to the conclusions an expert witness seeks to offer—particularly when a case arises in an area where the science itself is tentative or *148 uncertain, or where testimony about general risk levels in human beings or animals is offered to prove individual causation. Yet, as amici have pointed out, judges are not scientists and do not have the scientific training that can facilitate the making of such decisions. See, e. g., for Trial Lawyers for Public Justice as Amicus Curiae 15; for New England Journal of Medicine et al. as Amici Curiae 2 ("Judges are generally not trained scientists"). Of course, neither the difficulty of the task nor any comparative lack of expertise can excuse the judge from exercising the "gatekeeper" duties that the Federal Rules of Evidence impose—determining, for example, whether particular expert testimony is reliable and "will assist the trier of fact," Fed. Rule Evid. 702, or whether the "probative value" of testimony is substantially outweighed by risks of prejudice, confusion or waste of time, Fed. Rule Evid. 403. To the contrary, when law and science intersect, those duties often must be exercised with special care. Today's toxic tort case provides an example. The plaintiff in today's case says that a chemical substance caused, or promoted, his lung His concern, and that of others, about the causes of cancer is understandable, for cancer kills over one in five Americans. See U. S. Dept. of Health and Human Services, National Center for Health Statistics, Health, United States -97 and Injury Chartbook 117 (1997) (23.3% of all deaths in 1995). Moreover, scientific evidence implicates some chemicals as potential causes of some cancers. See, e. g., U. S. Dept. of Health and Human Services, Public Health Service, National Toxicology Program, 1 Seventh Annual Report on Carcinogens, pp. v—vi Yet modern life, including good health as well as economic well-being, depends upon the use of artificial or manufactured substances, such as chemicals. And it may, therefore, prove particularly important to see that judges fulfill their Daubert gatekeeping function, so that they help assure that the powerful engine of tort liability, which can generate *149 strong financial incentives to reduce, or to eliminate, production, points toward the right substances and does not destroy the wrong ones. It is, thus, essential in this sciencerelated area that the courts administer the Federal Rules of Evidence in order to achieve the "end[s]" that the Rules themselves set forth, not only so that proceedings may be "justly determined," but also so "that the truth may be ascertained." Fed. Rule Evid. 102. I therefore want specially to note that, as cases presenting significant science-related issues have increased in number, see Judicial Conference of the United States, Report of the Federal Courts Study Committee 97 (Apr. 2, 1990) ("Economic, statistical, technological, and natural and social scientific data are becoming increasingly important in both routine and complex litigation"), judges have increasingly found in the Rules of Evidence and Civil Procedure ways to help them overcome the inherent difficulty of making determinations about complicated scientific, or otherwise technical, evidence. Among these techniques are an increased use of Rule 16's pretrial conference authority to narrow the scientific issues in dispute, pretrial hearings where potential experts are subject to examination by the court, and the appointment of special masters and specially trained law clerks. See J. Cecil & T. Willging, Court-Appointed Experts: Defining the Role of Experts Appointed Under Federal Rule of Evidence 706, pp. 83-88 ; J. Individual Justice in Mass Tort Litigation 107-110 (1995); cf. Kaysen, In Memoriam: Charles E. Wyzanski, Jr., aff'd, ). In the present case, the New England Journal of Medicine has filed an amici brief "in support of neither petitioners nor respondents" in which the Journal writes: "[A] judge could better fulfill this gatekeeper function if he or she had help from scientists. Judges should be *150 strongly encouraged to make greater use of their inherent authority to appoint experts Reputable experts could be recommended to courts by established scientific organizations, such as the National Academy of Sciences or the American Association for the Advancement of Science." Cf. Fed. Rule Evid. 706 (court may "on its own motion or on the motion of any party" appoint an expert to serve on behalf of the court, and this expert may be selected as "agreed upon by the parties" or chosen by the court); see also Given this kind of offer of cooperative effort, from the scientific to the legal community, and given the various Rules-authorized methods for facilitating the courts' task, it seems to me that Daubert `s gatekeeping requirement will not prove inordinately difficult to implement, and that it will help secure the basic objectives of the Federal Rules of Evidence, which are, to repeat, the ascertainment of truth and the just determination of proceedings. Fed. Rule Evid. 102. Justice Stevens, concurring in part and dissenting in part. The question that we granted certiorari to decide is whether the Court of Appeals applied the correct standard of review. That question is fully answered in Parts I and II of the Court's opinion. Part III answers the quite different question whether the District Court properly held that the testimony of plaintiff's expert witnesses was inadmissible. Because I am not sure that the parties have adequately briefed that question, or that the Court has adequately explained why the Court of Appeals' disposition was erroneous, I do not join Part III. Moreover, because a proper answer to that question requires a study of the record that can be *151 performed more efficiently by the Court of Appeals than by the nine Members of this Court, I would remand the case to that court for application of the proper standard of review. One aspect of the record will illustrate my concern. As the Court of Appeals pointed out, Joiner's experts relied on "the studies of at least thirteen different researchers, and referred to several reports of the World Health Organization that address the question of whether PCBs cause " Only one of those studies is in the record, and only six of them were discussed in the District Court opinion. Whether a fair appraisal of either the methodology or the conclusions of Joiner's experts can be made on the basis of such an incomplete record is a question that I do not feel prepared to answer. It does seem clear, however, that the Court has not adequately explained why its holding is consistent with Federal Rule of Evidence 702,[1] as interpreted in[2] In general, scientific testimony that is both relevant and reliable must be admitted and testimony that is irrelevant or unreliable must be excluded. In this case, the District Court relied on both grounds for exclusion. The relevance ruling was straightforward. The District Court correctly reasoned that an expert opinion that exposure *152 to PCB's, "furans" and "dioxins" together may cause lung cancer would be irrelevant unless the plaintiff had been exposed to those substances. Having already found that there was no evidence of exposure to furans and dioxins, it necessarily followed that this expert opinion testimony was inadmissible. Correctly applying Daubert, the District Court explained that the experts' testimony "manifestly does not fit the facts of this case, and is therefore inadmissible." Of course, if the evidence raised a genuine issue of fact on the question of Joiner's exposure to furans and dioxins—as the Court of Appeals held that it did—then this basis for the ruling on admissibility was erroneous, but not because the District Judge either abused her discretion or misapplied the law.[3] The reliability ruling was more complex and arguably is not faithful to the statement in Daubert that "[t]he focus, of course, must be solely on principles and methodology, not on the conclusions that they generate." Joiner's experts used a "weight of the evidence" methodology to assess whether Joiner's exposure to transformer fluids promoted his lung [4] They did not suggest that any *153 one study provided adequate support for their conclusions, but instead relied on all the studies taken together (along with their interviews of Joiner and their review of his medical records). The District Court, however, examined the studies one by one and concluded that none was sufficient to show a link between PCB's and lung -1326. The focus of the opinion was on the separate studies and the conclusions of the experts, not on the experts' methodology. Unlike the District Court, the Court of Appeals expressly decided that a "weight of the evidence" methodology was scientifically acceptable.[5] To this extent, the Court of Appeals' opinion is persuasive. It is not intrinsically "unscientific" for experienced professionals to arrive at a conclusion by weighing all available scientific evidence—this is not the sort of "junk science" with which Daubert was concerned.[6] After all, as Joiner points out, the Environmental Protection Agency (EPA) uses the same methodology to assess risks, albeit using a somewhat different threshold than that required in a trial. for Respondents 40-41 (quoting *154 EPA, Guidelines for Carcinogen Risk Assessment, 33996 (1986)). Petitioners' own experts used the same scientific approach as well.[7] And using this methodology, it would seem that an expert could reasonably have concluded that the study of workers at an Italian capacitor plant, coupled with data from Monsanto's study and other studies, raises an inference that PCB's promote lung [8] The Court of Appeals' discussion of admissibility is faithful to the dictum in Daubert that the reliability inquiry must focus on methodology, not conclusions. Thus, even though I fully agree with both the District Court's and this Court's explanation of why each of the studies on which the experts relied was by itself unpersuasive, a critical question remains unanswered: When qualified experts have reached relevant conclusions on the basis of an acceptable methodology, why are their opinions inadmissible? Daubert quite clearly forbids trial judges to assess the validity or strength of an expert's scientific conclusions, which is a matter for the jury.[9] Because I am persuaded *155 that the difference between methodology and conclusions is just as categorical as the distinction between means and ends, I do not think the statement that "conclusions and methodology are not entirely distinct from one another," ante, at 146, either is accurate or helps us answer the difficult admissibility question presented by this record. In any event, it bears emphasis that the Court has not held that it would have been an abuse of discretion to admit the expert testimony. The very point of today's holding is that the abuse-of-discretion standard of review applies whether the district judge has excluded or admitted evidence. Ante, at 142. And nothing in either Daubert or the Federal Rules of Evidence requires a district judge to reject an expert's conclusions and keep them from the jury when they fit the facts of the case and are based on reliable scientific methodology. Accordingly, while I join Parts I and II of the Court's opinion, I do not concur in the judgment or in Part III of its opinion.

Justice Ginsburg

majority

Alabama v. Shelton

2002-05-20

https://www.courtlistener.com/opinion/118507/alabama-v-shelton/

https://www.courtlistener.com/api/rest/v3/clusters/118507/

2001-050

This case concerns the Sixth Amendment right of an indigent defendant charged with a misdemeanor punishable by imprisonment, fine, or both, to the assistance of courtappointed counsel. Two prior decisions control the Court's judgment. First, in Argersinger v. Hamlin, 407 U.S. 25 (1972), this Court held that defense counsel must be appointed in any criminal prosecution, "whether classified as petty, misdemeanor, or felony," id., at 37, "that actually leads to imprisonment even for a brief period," id., at 33. Later, in Scott v. Illinois, 440 U.S. 367, 373-374 (1979), the Court drew the line at "actual imprisonment," holding that counsel need not be appointed when the defendant is fined for the charged crime, but is not sentenced to a term of imprisonment. *658 Defendant-respondent LeReed Shelton, convicted of third-degree assault, was sentenced to a jail term of 30 days, which the trial court immediately suspended, placing Shelton on probation for two years. The question presented is whether the Sixth Amendment right to appointed counsel, as delineated in Argersinger and Scott, applies to a defendant in Shelton's situation. We hold that a suspended sentence that may "end up in the actual deprivation of a person's liberty" may not be imposed unless the defendant was accorded "the guiding hand of counsel" in the prosecution for the crime charged. Argersinger, 407 U. S., at 40 (internal quotation marks omitted). I After representing himself at a bench trial in the District Court of Etowah County, Alabama, Shelton was convicted of third-degree assault, a class A misdemeanor carrying a maximum punishment of one year imprisonment and a $2,000 fine, Ala. Code §§ 13A-6-22, 13A-5-7(a)(1), 13A-5-12(a)(1) (1994). He invoked his right to a new trial before a jury in Circuit Court, Ala. Code § 12-12-71 (1995), where he again appeared without a lawyer and was again convicted. The court repeatedly warned Shelton about the problems selfrepresentation entailed, see App. 9, but at no time offered him assistance of counsel at state expense. The Circuit Court sentenced Shelton to serve 30 days in the county prison. As authorized by Alabama law, however, Ala. Code § 15-22-50 (1995), the court suspended that sentence and placed Shelton on two years' unsupervised probation, conditioned on his payment of court costs, a $500 fine, reparations of $25, and restitution in the amount of $516.69. Shelton appealed his conviction and sentence on Sixth Amendment grounds, and the Alabama Court of Criminal *659 Appeals affirmed.[1] That court initially held that an indigent defendant who receives a suspended prison sentence has a constitutional right to state-appointed counsel and remanded for a determination whether Shelton had "made a knowing, intelligent, and voluntary waiver of his right." App. 7. When the case returned from remand, however, the appeals court reversed course: A suspended sentence, the court concluded, does not trigger the Sixth Amendment right to appointed counsel unless there is "evidence in the record that the [defendant] has actually been deprived of liberty." Id., at 13. Because Shelton remained on probation, the court held that he had not been denied any Sixth Amendment right at trial. Id., at 14. The Supreme Court of Alabama reversed the Court of Criminal Appeals in relevant part. Referring to this Court's decisions in Argersinger and Scott, the Alabama Supreme Court reasoned that a defendant may not be "sentenced to a term of imprisonment" absent provision of counsel. App. 37. In the Alabama high court's view, a suspended sentence constitutes a "term of imprisonment" within the meaning of Argersinger and Scott even though incarceration is not immediate or inevitable. And because the State is constitutionally barred from activating the conditional sentence, the Alabama court concluded, "`the threat itself is hollow and should be considered a nullity.' " App. 37 (quoting United States v. Reilley, 948 F.2d 648, 654 (CA10 1991)). Accordingly, the court affirmed Shelton's conviction and the monetary portion of his punishment, but invalidated "that aspect of his sentence imposing 30 days of *660 suspended jail time." App. 40. By reversing Shelton's suspended sentence, the State informs us, the court also vacated the two-year term of probation. See Brief for Petitioner 6.[2] Courts have divided on the Sixth Amendment question presented in this case. Some have agreed with the decision below that appointment of counsel is a constitutional prerequisite to imposition of a conditional or suspended prison sentence. See, e. g., Reilley, 948 F. 2d, at 654; United States v. Foster, 904 F.2d 20, 21 (CA9 1990); United States v. White, 529 F.2d 1390, 1394 (CA8 1976). Others have rejected that proposition. See, e. g., Cottle v. Wainwright, 477 F.2d 269, 274 (CA5), vacated on other grounds, 414 U.S. 895 (1973); Griswold v. Commonwealth, 252 Va. 113, 116-117, 472 S.E.2d 789, 791 (1996); State v. Hansen, 273 Mont. 321, 325, 903 P.2d 194, 197 (1995). We granted certiorari to resolve the conflict. 532 U.S. 1018 (2001). II Three positions are before us in this case. In line with the decision of the Supreme Court of Alabama, Shelton argues that an indigent defendant may not receive a suspended sentence unless he is offered or waives the assistance of state-appointed counsel. Brief for Respondent 5-27.[3] Alabama *661 now concedes that the Sixth Amendment bars activation of a suspended sentence for an uncounseled conviction, but maintains that the Constitution does not prohibit imposition of such a sentence as a method of effectuating probationary punishment. Reply Brief 4-13. To assure full airing of the question presented, we invited an amicus curiae (amicus) to argue in support of a third position, one Alabama has abandoned: Failure to appoint counsel to an indigent defendant "does not bar the imposition of a suspended or probationary sentence upon conviction of a misdemeanor, even though the defendant might be incarcerated in the event probation is revoked." 534 U.S. 987 (2001).[4] A In Gideon v. Wainwright, 372 U.S. 335, 344-345 (1963), we held that the Sixth Amendment's guarantee of the right to state-appointed counsel, firmly established in federal-court proceedings in Johnson v. Zerbst, 304 U.S. 458 (1938), applies to state criminal prosecutions through the Fourteenth Amendment. We clarified the scope of that right in Argersinger, holding that an indigent defendant must be offered counsel in any misdemeanor case "that actually leads to imprisonment." 407 U.S., at 33. Seven Terms later, Scott confirmed Argersinger `s "delimit[ation]," 440 U.S., at 373. Although the governing statute in Scott authorized a jail sentence of up to one year, see id., at 368, we held that the defendant had no right to state-appointed counsel because the sole sentence actually imposed on him was a $50 fine, id., at 373. "Even were the matter res nova, " we stated, "the central premise of Argersinger —that actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment—is eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel" in nonfelony cases. Ibid. *662 Subsequent decisions have reiterated the Argersinger Scott "actual imprisonment" standard. See, e. g., Glover v. United States, 531 U.S. 198, 203 (2001) ("any amount of actual jail time has Sixth Amendment significance"); M. L. B. v. S. L. J., 519 U.S. 102, 113 (1996); Nichols v. United States, 511 U.S. 738, 746 (1994) (constitutional line is "between criminal proceedings that resulted in imprisonment, and those that did not"); id., at 750 (Souter, J., concurring in judgment) ("The Court in Scott, relying on Argersinger [,] drew a bright line between imprisonment and lesser criminal penalties."); Lassiter v. Department of Social Servs. of Durham Cty., 452 U.S. 18, 26 (1981). It is thus the controlling rule that "absent a knowing and intelligent waiver, no person may be imprisoned for any offense . . . unless he was represented by counsel at his trial." Argersinger, 407 U. S., at 37. B Applying the "actual imprisonment" rule to the case before us, we take up first the question we asked amicus to address: Where the State provides no counsel to an indigent defendant, does the Sixth Amendment permit activation of a suspended sentence upon the defendant's violation of the terms of probation? We conclude that it does not. A suspended sentence is a prison term imposed for the offense of conviction. Once the prison term is triggered, the defendant is incarcerated not for the probation violation, but for the underlying offense. The uncounseled conviction at that point "result[s] in imprisonment," Nichols, 511 U. S., at 746; it "end[s] up in the actual deprivation of a person's liberty," Argersinger, 407 U. S., at 40. This is precisely what the Sixth Amendment, as interpreted in Argersinger and Scott, does not allow. Amicus resists this reasoning primarily on two grounds. First, he attempts to align this case with our decisions in Nichols and Gagnon v. Scarpelli, 411 U.S. 778 (1973). See Brief for Amicus Curiae by Invitation of the Court 11-18 *663 (hereinafter Fried Brief). We conclude that Shelton's case is not properly bracketed with those dispositions. Nichols presented the question whether the Sixth Amendment barred consideration of a defendant's prior uncounseled misdemeanor conviction in determining his sentence for a subsequent felony offense. 511 U.S., at 740. Nichols pleaded guilty to federal felony drug charges. Several years earlier, unrepresented by counsel, he was fined but not incarcerated for the state misdemeanor of driving under the influence (DUI). Including the DUI conviction in the federal Sentencing Guidelines calculation allowed the trial court to impose a sentence for the felony drug conviction "25 months longer than if the misdemeanor conviction had not been considered." Id., at 741. We upheld this result, concluding that "an uncounseled misdemeanor conviction, valid under Scott because no prison term was imposed, is also valid when used to enhance punishment at a subsequent conviction." Id., at 749. In Gagnon, the question was whether the defendant, who was placed on probation pursuant to a suspended sentence for armed robbery, had a due process right to representation by appointed counsel at a probation revocation hearing. 411 U.S., at 783. We held that counsel was not invariably required in parole or probation revocation proceedings; we directed, instead, a "case-by-case approach" turning on the character of the issues involved. Id., at 788-791. Considered together, amicus contends, Nichols and Gagnon establish this principle: Sequential proceedings must be analyzed separately for Sixth Amendment purposes, Fried Brief 11-18, and only those proceedings "result[ing] in immediate actual imprisonment" trigger the right to stateappointed counsel, id., at 13 (emphasis added). Thus, the defendant in Nichols had no right to appointed counsel in the DUI proceeding because he was not immediately imprisoned at the conclusion of that proceeding. The uncounseled DUI, valid when imposed, did not later become invalid because *664 it was used to enhance the length of imprisonment that followed a separate and subsequent felony proceeding. Just so here, amicus contends: Shelton had no right to appointed counsel in the Circuit Court because he was not incarcerated immediately after trial; his conviction and suspended sentence were thus valid and could serve as proper predicates for actual imprisonment at a later hearing to revoke his probation. See Fried Brief 14, 23-24. Gagnon and Nichols do not stand for the broad proposition amicus would extract from them. The dispositive factor in those cases was not whether incarceration occurred immediately or only after some delay. Rather, the critical point was that the defendant had a recognized right to counsel when adjudicated guilty of the felony offense for which he was imprisoned. See Nichols, 511 U. S., at 743, n. 9 (absent waiver, right to appointed counsel in felony cases is absolute). Unlike this case, in which revocation of probation would trigger a prison term imposed for a misdemeanor of which Shelton was found guilty without the aid of counsel, the sentences imposed in Nichols and Gagnon were for felony convictions—a federal drug conviction in Nichols, and a state armed robbery conviction in Gagnon —for which the right to counsel is unquestioned. See Nichols, 511 U. S., at 747 (relevant sentencing provisions punished only "the last offense committed by the defendant," and did not constitute or "change the penalty imposed for the earlier" uncounseled misdemeanor); Gagnon, 411 U. S., at 789 (distinguishing "the right of an accused to counsel in a criminal prosecution" from "the more limited due process right of one who is a probationer or parolee only because he has been convicted of a crime"). Thus, neither Nichols nor Gagnon altered or diminished Argersinger `s command that "no person may be imprisoned for any offense . . . unless he was represented by counsel at his trial," 407 U.S., at 37 (emphasis added). Far from *665 supporting amicus ` position, Gagnon and Nichols simply highlight that the Sixth Amendment inquiry trains on the stage of the proceedings corresponding to Shelton's Circuit Court trial, where his guilt was adjudicated, eligibity for imprisonment established, and prison sentence determined. Nichols is further distinguishable for the related reason that the Court there applied a "less exacting" standard "consistent with the traditional understanding of the sentencing process." 511 U.S., at 747. Once guilt has been established, we noted in Nichols, sentencing courts may take into account not only "a defendant's prior convictions, but . . . also [his] past criminal behavior, even if no conviction resulted from that behavior." Ibid. Thus, in accord with due process, Nichols "could have been sentenced more severely based simply on evidence of the underlying conduct that gave rise" to his previous conviction, id., at 748 (emphasis added), even if he had never been charged with that conduct, Williams v. New York, 337 U.S. 241 (1949), and even if he had been acquitted of the misdemeanor with the aid of appointed counsel, United States v. Watts, 519 U.S. 148, 157 (1997) (per curiam). That relaxed standard has no application in this case, where the question is whether the defendant may be jailed absent a conviction credited as reliable because the defendant had access to "the guiding hand of counsel," Argersinger, 407 U. S., at 40 (internal quotation marks omitted). Amicus also contends that "practical considerations clearly weigh against" the extension of the Sixth Amendment appointed-counsel right to a defendant in Shelton's situation. Fried Brief 23. He cites figures suggesting that although conditional sentences are commonly imposed, they are rarely activated. Id., at 20-22; Tr. of Oral Arg. 20-21 (speculating that "hundreds of thousands" of uncounseled defendants receive suspended sentences, but only "thousands" of that large number are incarcerated upon violating the terms of their probation). Based on these estimations, ami- *666 cus argues that a rule requiring appointed counsel in every case involving a suspended sentence would unduly hamper the States' attempts to impose effective probationary punishment. A more "workable solution," he contends, would permit imposition of a suspended sentence on an uncounseled defendant and require appointment of counsel, if at all, only at the probation revocation stage, when incarceration is imminent. Fried Brief 18, 23-24. Amicus observes that probation is "now a critical tool of law enforcement in low level cases." Id., at 22. Even so, it does not follow that preservation of that tool warrants the reduction of the Sixth Amendment's domain that would result from the regime amicus hypothesizes. Amicus does not describe the contours of the hearing that, he suggests, might precede revocation of a term of probation imposed on an uncounseled defendant. See id., at 24 (raising, but not endeavoring to answer, several potential questions about the nature of the revocation hearing amicus contemplates). In Alabama, however, the character of the probation revocation hearing currently afforded is not in doubt. The proceeding is an "informal" one, Buckelew v. State, 48 Ala. App. 418, 421, 265 So. 2d 202, 205 (Crim. App. 1972), at which the defendant has no right to counsel, and the court no obligation to observe customary rules of evidence, Martin v. State, 46 Ala. App. 310, 311, 241 So. 2d 339, 340 (Crim. App. 1970). More significant, the sole issue at the hearing—apart from determinations about the necessity of confinement, see Ala. Code § 15-22-54(d)(4) (1975)—is whether the defendant breached the terms of probation. See Martin, 46 Ala. App., at 312, 241 So. 2d, at 341 ("All that is required in a hearing of this character is that the evidence be such as to reasonably satisfy the judge in the exercise of his sound discretion that the defendant has violated a valid condition upon which the sentence was suspended." (internal quotation marks omitted)). The validity or reliability of the underlying conviction is beyond attack. See Buckelew, 48 Ala. App., at 421, *667 265 So. 2d, at 205 ("a probation hearing cannot entertain a collateral attack on a judgment of another circuit"). We think it plain that a hearing so timed and structured cannot compensate for the absence of trial counsel, for it does not even address the key Sixth Amendment inquiry: whether the adjudication of guilt corresponding to the prison sentence is sufficiently reliable to permit incarceration. Deprived of counsel when tried, convicted, and sentenced, and unable to challenge the original judgment at a subsequent probation revocation hearing, a defendant in Shelton's circumstances faces incarceration on a conviction that has never been subjected to "the crucible of meaningful adversarial testing," United States v. Cronic, 466 U.S. 648, 656 (1984). The Sixth Amendment does not countenance this result. In a variation on amicus' position, the dissent would limit review in this case to the question whether the imposition of Shelton's suspended sentence required appointment of counsel, answering that question "plainly no" because such a step "does not deprive a defendant of his personal liberty." Post, at 676. Only if the sentence is later activated, the dissent contends, need the Court "ask whether the procedural safeguards attending the imposition of [Shelton's] sentence comply with the Constitution." Ibid. Severing the analysis in this manner makes little sense. One cannot assess the constitutionality of imposing a suspended sentence while simultaneously walling off the procedures that will precede its activation. The dissent imagines a set of safeguards Alabama might provide at the probation revocation stage sufficient to cure its failure to appoint counsel prior to sentencing, including, perhaps, "complete retrial of the misdemeanor violation with assistance of counsel," post, at 677. But there is no cause for speculation about Alabama's procedures; they are established by Alabama statute and decisional law, see supra, at 666 and this page, and they bear no resemblance to those the dissent invents in its effort to sanction the prospect of Shelton's imprisonment on *668 an uncounseled conviction.[5] Assessing the issue before us in light of actual circumstances, we do not comprehend how the procedures Alabama in fact provides at the probation revocation hearing could bring Shelton's sentence within constitutional bounds.[6] Nor do we agree with amicus or the dissent that our holding will "substantially limit the states' ability" to impose probation, Fried Brief 22, or encumber them with a "large, new burden," post, at 680. Most jurisdictions already provide a state-law right to appointed counsel more generous than that afforded by the Federal Constitution. See *669 Nichols, 511 U. S., at 748-749, n. 12. All but 16 States, for example, would provide counsel to a defendant in Shelton's circumstances, either because he received a substantial fine[7] or because state law authorized incarceration for the charged offense[8] or provided for a maximum prison term of one year.[9] See Ala. Code §§ 13A-6-22, 13A-5-7(a)(1), 13A— 5-12(a)(1) (1994). There is thus scant reason to believe that a rule conditioning imposition of a suspended sentence on provision of appointed counsel would affect existing practice *670 in the large majority of the States.[10] And given the current commitment of most jurisdictions to affording courtappointed counsel to indigent misdemeanants while simultaneously preserving the option of probationary punishment, we do not share amicus' concern that other States may lack the capacity and resources to do the same. Moreover, even if amicus is correct that "some courts and jurisdictions at least [can]not bear" the costs of the rule we confirm today, Fried Brief 23, those States need not abandon probation or equivalent measures as viable forms of punishment. *671 Although they may not attach probation to an imposed and suspended prison sentence, States unable or unwilling routinely to provide appointed counsel to misdemeanants in Shelton's situation are not without recourse to another option capable of yielding a similar result. That option is pretrial probation, employed in some form by at least 23 States. See App. to Reply Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 1a—2a (collecting state statutes). Under such an arrangement, the prosecutor and defendant agree to the defendant's participation in a pretrial rehabilitation program,[11] which includes conditions typical of post-trial probation. The adjudication of guilt and imposition of sentence for the underlying offense then occur only if and when the defendant breaches those conditions. Ibid.; see, e. g., Conn. Gen. Stat. § 54-56e (2001); Pa. Rules Crim. Proc. 310-320, 316 (2002) ("The conditions of the [pretrial rehabilitation] program may be such as may be imposed with respect to probation after conviction of a crime."); N. Y. Crim. Proc. Law § 170.55(3) (McKinney Supp. 2001) (pretrial "adjournment in contemplation of dismissal" may require defendant "to observe certain specified conditions of conduct").[12] Like the regime urged by amicus, this system reserves the appointed-counsel requirement for the "small percentage" *672 of cases in which incarceration proves necessary, Fried Brief 21, thus allowing a State to "supervise a course of rehabilitation" without providing a lawyer every time it wishes to pursue such a course, Gagnon, 411 U. S., at 784. Unlike amicus ` position, however, pretrial probation also respects the constitutional imperative that "no person may be imprisoned for any offense . . . unless he was represented by counsel at his trial," Argersinger, 407 U. S., at 37. C Alabama concedes that activation of a suspended sentence results in the imprisonment of an uncounseled defendant "for a term that relates to the original offense" and therefore "crosses the line of `actual imprisonment' " established in Argersinger and Scott. Reply Brief to Amicus Curiae Professor Charles Fried 8. Shelton cannot be imprisoned, Alabama thus acknowledges, "unless the State has afforded him the right to assistance of appointed counsel in his defense," Scott, 440 U. S.,at 374; see Reply Brief 9. Alabama maintains, however, that there is no constitutional barrier to imposition of a suspended sentence that can never be enforced; the State therefore urges reversal of the Alabama Supreme Court's judgment insofar as it vacated the term of probation Shelton was ordered to serve. In effect, Alabama invites us to regard two years' probation for Shelton as a separate and independent sentence, which "the State would have the same power to enforce [as] a judgment of a mere fine." Tr. of Oral Arg. 6. Scott, Alabama emphasizes, squarely held that a fine-only sentence does not trigger a right to court-appointed counsel, Tr. of Oral Arg. 6; similarly, Alabama maintains, probation uncoupled from a prison sentence should trigger no immediate right to appointed counsel. Seen as a freestanding sentence, Alabama further asserts, probation could be enforced, as a criminal fine or restitution order could, in a contempt proceeding. *673 See Reply Brief 11-12; Reply Brief to Amicus Curiae Professor Charles Fried 10-13; Tr. of Oral Arg. 7. Alabama describes the contempt proceeding it envisions as one in which Shelton would receive "the full panoply of due process," including the assistance of counsel. Reply Brief 12. Any sanction imposed would be for "postconviction wrongdoing," not for the offense of conviction. Reply Brief to Amicus Curiae Professor Charles Fried 11. "The maximum penalty faced would be a $100 fine and five days' imprisonment," Reply Brief 12 (citing Ala. Code § 12— 11-30(5) (1995)), not the 30 days ordered and suspended by the Alabama Circuit Court, see supra, at 658. There is not so much as a hint, however, in the decision of the Supreme Court of Alabama, that Shelton's probation term is separable from the prison term to which it was tethered. Absent any prior presentation of the position the State now takes,[13] we resist passing on it in the first instance. Our resistance to acting as a court of first view instead of one of review is heightened by the Alabama Attorney General's acknowledgment at oral argument that he did not know of any State that imposes, postconviction, on a par with a fine, a term of probation unattached to a suspended sentence. Tr. of Oral Arg. 8. The novelty of the State's current position is further marked by the unqualified statement in Alabama's opening brief that, "[b]y reversing Shelton's suspended sentence, the [Supreme Court of Alabama] correspondingly vacated the two-year probationary term." Brief for Petitioner 6. *674 In short, Alabama has developed its position late in this litigation and before the wrong forum. It is for the Alabama Supreme Court to consider before this Court does whether the suspended sentence alone is invalid, leaving Shelton's probation term freestanding and independently effective. See Hortonville Joint School Dist. No. 1 v. Hortonville Ed. Assn., 426 U.S. 482, 488 (1976) ("We are, of course, bound to accept the interpretation of [the State's] law by the highest court of the State."). We confine our review to the ruling the Alabama Supreme Court made in the case as presented to it: "[A] defendant who receives a suspended or probated sentence to imprisonment has a constitutional right to counsel." App. 40 (emphasis added); see Brief for Petitioner 6. We find no infirmity in that holding. * * * Satisfied that Shelton is entitled to appointed counsel at the critical stage when his guilt or innocence of the charged crime is decided and his vulnerability to imprisonment is determined, we affirm the judgment of the Supreme Court of Alabama. It is so ordered.

This case concerns the Sixth Amendment right of an indigent defendant charged with a misdemeanor punishable by imprisonment, fine, or both, to the assistance of courtappointed counsel. Two prior decisions control the Court's judgment. First, in this Court held that defense counsel must be appointed in any criminal prosecution, "whether classified as petty, misdemeanor, or felony," "that actually leads to imprisonment even for a brief period," Later, in the Court drew the line at "actual imprisonment," holding that counsel need not be appointed when the defendant is fined for the charged crime, but is not sentenced to a term of imprisonment. *658 Defendant-respondent LeReed Shelton, convicted of third-degree assault, was sentenced to a jail term of 30 days, which the trial court immediately suspended, placing Shelton on probation for two years. The question presented is whether the Sixth Amendment right to appointed counsel, as delineated in and Scott, applies to a defendant in Shelton's situation. We hold that a suspended sentence that may "end up in the actual deprivation of a person's liberty" may not be imposed unless the defendant was accorded "the guiding hand of counsel" in the prosecution for the crime charged. I After representing himself at a bench trial in the District Court of Etowah County, Alabama, Shelton was convicted of third-degree assault, a class A misdemeanor carrying a maximum punishment of one year imprisonment and a $2,000 fine, Ala. Code 13A-6-22, 13A-5-7(a)(1), 13A-5-12(a)(1) He invoked his right to a new trial before a jury in Circuit Court, where he again appeared without a lawyer and was again convicted. The court repeatedly warned Shelton about the problems selfrepresentation entailed, see App. 9, but at no time offered him assistance of counsel at state expense. The Circuit Court sentenced Shelton to serve 30 days in the county prison. As authorized by Alabama law, however, the court suspended that sentence and placed Shelton on two years' unsupervised probation, conditioned on his payment of court costs, a $500 fine, reparations of $25, and restitution in the amount of $516.69. Shelton appealed his conviction and sentence on Sixth Amendment grounds, and the Alabama Court of Criminal *659 Appeals affirmed.[1] That court initially held that an indigent defendant who receives a suspended prison sentence has a constitutional right to state-appointed counsel and remanded for a determination whether Shelton had "made a knowing, intelligent, and voluntary waiver of his right." App. 7. When the case returned from remand, however, the appeals court reversed course: A suspended sentence, the court concluded, does not trigger the Sixth Amendment right to appointed counsel unless there is "evidence in the record that the [defendant] has actually been deprived of liberty." Because Shelton remained on probation, the court held that he had not been denied any Sixth Amendment right at trial. The Supreme Court of Alabama reversed the Court of Criminal Appeals in relevant part. Referring to this Court's decisions in and Scott, the Alabama Supreme Court reasoned that a defendant may not be "sentenced to a term of imprisonment" absent provision of counsel. App. 37. In the Alabama high court's view, a suspended sentence constitutes a "term of imprisonment" within the meaning of and Scott even though incarceration is not immediate or inevitable. And because the State is constitutionally barred from activating the conditional sentence, the Alabama court concluded, "`the threat itself is hollow and should be considered a nullity.' " App. 37 ). Accordingly, the court affirmed Shelton's conviction and the monetary portion of his punishment, but invalidated "that aspect of his sentence imposing 30 days of *660 suspended jail time." App. 40. By reversing Shelton's suspended sentence, the State informs us, the court also vacated the two-year term of probation. See Brief for Petitioner 6.[2] Courts have divided on the Sixth Amendment question presented in this case. Some have agreed with the decision below that appointment of counsel is a constitutional prerequisite to imposition of a conditional or suspended prison sentence. See, e. g., Reilley, 948 F. 2d, at ; United ; United Others have rejected that proposition. See, e. g., (CA5), vacated on other grounds, ; ; 273 Mont. 3, We granted certiorari to resolve the conflict. II Three positions are before us in this case. In line with the decision of the Supreme Court of Alabama, Shelton argues that an indigent defendant may not receive a suspended sentence unless he is offered or waives the assistance of state-appointed counsel. Brief for Respondent 5-27.[3] Alabama *661 now concedes that the Sixth Amendment bars activation of a suspended sentence for an uncounseled conviction, but maintains that the Constitution does not prohibit imposition of such a sentence as a method of effectuating probationary punishment. Reply Brief 4-13. To assure full airing of the question presented, we invited an amicus curiae (amicus) to argue in support of a third position, one Alabama has abandoned: Failure to appoint counsel to an indigent defendant "does not bar the imposition of a suspended or probationary sentence upon conviction of a misdemeanor, even though the defendant might be incarcerated in the event probation is revoked."[4] A In we held that the Sixth Amendment's guarantee of the right to state-appointed counsel, firmly established in federal-court proceedings in applies to state criminal prosecutions through the Fourteenth Amendment. We clarified the scope of that right in holding that an indigent defendant must be offered counsel in any misdemeanor case "that actually leads to imprisonment." 407 U.S., Seven Terms later, Scott confirmed `s "delimit[ation]," 440 U.S., 3. Although the governing statute in Scott authorized a jail sentence of up to one year, see we held that the defendant had no right to state-appointed counsel because the sole sentence actually imposed on him was a $50 fine, 3. "Even were the matter res nova, " we stated, "the central premise of —that actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment—is eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel" in nonfelony cases. *662 Subsequent decisions have reiterated the Scott "actual imprisonment" standard. See, e. g., ; M. L. ; ; ("The Court in Scott, relying on [,] drew a bright line between imprisonment and lesser criminal penalties."); It is thus the controlling rule that "absent a knowing and intelligent waiver, no person may be imprisoned for any offense unless he was represented by counsel at his trial." 407 U. S., B Applying the "actual imprisonment" rule to the case before us, we take up first the question we asked amicus to address: Where the State provides no counsel to an indigent defendant, does the Sixth Amendment permit activation of a suspended sentence upon the defendant's violation of the terms of probation? We conclude that it does not. A suspended sentence is a prison term imposed for the offense of conviction. Once the prison term is triggered, the defendant is incarcerated not for the probation violation, but for the underlying The uncounseled conviction at that point "result[s] in imprisonment," 511 U. S., at ; it "end[s] up in the actual deprivation of a person's liberty," This is precisely what the Sixth Amendment, as interpreted in and Scott, does not allow. Amicus resists this reasoning primarily on two grounds. First, he attempts to align this case with our decisions in and See Brief for Amicus Curiae by Invitation of the Court 11-18 *663 (hereinafter Fried Brief). We conclude that Shelton's case is not properly bracketed with those dispositions. presented the question whether the Sixth Amendment barred consideration of a defendant's prior uncounseled misdemeanor conviction in determining his sentence for a subsequent felony pleaded guilty to federal felony drug charges. Several years earlier, unrepresented by counsel, he was fined but not incarcerated for the state misdemeanor of driving under the influence (DUI). Including the DUI conviction in the federal Sentencing Guidelines calculation allowed the trial court to impose a sentence for the felony drug conviction "25 months longer than if the misdemeanor conviction had not been considered." We upheld this result, concluding that "an uncounseled misdemeanor conviction, valid under Scott because no prison term was imposed, is also valid when used to enhance punishment at a subsequent conviction." In the question was whether the defendant, who was placed on probation pursuant to a suspended sentence for armed robbery, had a due process right to representation by appointed counsel at a probation revocation We held that counsel was not invariably required in parole or probation revocation proceedings; we directed, instead, a "case-by-case approach" turning on the character of the issues involved. at 788-. Considered together, amicus contends, and establish this principle: Sequential proceedings must be analyzed separately for Sixth Amendment purposes, Fried Brief 11-18, and only those proceedings "result[ing] in immediate actual imprisonment" trigger the right to stateappointed counsel, Thus, the defendant in had no right to appointed counsel in the DUI proceeding because he was not immediately imprisoned at the conclusion of that proceeding. The uncounseled DUI, valid when imposed, did not later become invalid because *664 it was used to enhance the length of imprisonment that followed a separate and subsequent felony proceeding. Just so here, amicus contends: Shelton had no right to appointed counsel in the Circuit Court because he was not incarcerated immediately after trial; his conviction and suspended sentence were thus valid and could serve as proper predicates for actual imprisonment at a later hearing to revoke his probation. See Fried Brief 14, 23-24. and do not stand for the broad proposition amicus would extract from them. The dispositive factor in those cases was not whether incarceration occurred immediately or only after some delay. Rather, the critical point was that the defendant had a recognized right to counsel when adjudicated guilty of the felony offense for which he was imprisoned. See n. 9 Unlike this case, in which revocation of probation would trigger a prison term imposed for a misdemeanor of which Shelton was found guilty without the aid of counsel, the sentences imposed in and were for felony convictions—a federal drug conviction in and a state armed robbery conviction in —for which the right to counsel is unquestioned. See ; Thus, neither nor altered or diminished `s command that "no person may be imprisoned for any offense unless he was represented by counsel at his trial," 407 U.S., Far from *665 supporting amicus ` position, and simply highlight that the Sixth Amendment inquiry trains on the stage of the proceedings corresponding to Shelton's Circuit Court trial, where his guilt was adjudicated, eligibity for imprisonment established, and prison sentence determined. is further distinguishable for the related reason that the Court there applied a "less exacting" standard "consistent with the traditional understanding of the sentencing process." Once guilt has been established, we noted in sentencing courts may take into account not only "a defendant's prior convictions, but also [his] past criminal behavior, even if no conviction resulted from that behavior." Thus, in accord with due process, "could have been sentenced more severely based simply on evidence of the underlying conduct that gave rise" to his previous conviction, even if he had never been charged with that conduct, and even if he had been acquitted of the misdemeanor with the aid of appointed counsel, United That relaxed standard has no application in this case, where the question is whether the defendant may be jailed absent a conviction credited as reliable because the defendant had access to "the guiding hand of counsel," Amicus also contends that "practical considerations clearly weigh against" the extension of the Sixth Amendment appointed-counsel right to a defendant in Shelton's situation. Fried Brief 23. He cites figures suggesting that although conditional sentences are commonly imposed, they are rarely activated. ; Tr. of Oral Arg. 20- (speculating that "hundreds of thousands" of uncounseled defendants receive suspended sentences, but only "thousands" of that large number are incarcerated upon violating the terms of their probation). Based on these estimations, ami- *666 cus argues that a rule requiring appointed counsel in every case involving a suspended sentence would unduly hamper the States' attempts to impose effective probationary punishment. A more "workable solution," he contends, would permit imposition of a suspended sentence on an uncounseled defendant and require appointment of counsel, if at all, only at the probation revocation stage, when incarceration is imminent. Fried Brief 18, 23-24. Amicus observes that probation is "now a critical tool of law enforcement in low level cases." Even so, it does not follow that preservation of that tool warrants the reduction of the Sixth Amendment's domain that would result from the regime amicus hypothesizes. Amicus does not describe the contours of the hearing that, he suggests, might precede revocation of a term of probation imposed on an uncounseled defendant. See In Alabama, however, the character of the probation revocation hearing currently afforded is not in doubt. The proceeding is an "informal" one, 4, 5 So. 2d 202, at which the defendant has no right to counsel, and the court no obligation to observe customary rules of evidence, (Crim. App. 0). More significant, the sole issue at the hearing—apart from determinations about the necessity of confinement, see (d)(4) (5)—is whether the defendant breached the terms of probation. See ("All that is required in a hearing of this character is that the evidence be such as to reasonably satisfy the judge in the exercise of his sound discretion that the defendant has violated a valid condition upon which the sentence was suspended." ). The validity or reliability of the underlying conviction is beyond attack. See 48 Ala. App., at 4, * 5 So. 2d, at We think it plain that a hearing so timed and structured cannot compensate for the absence of trial counsel, for it does not even address the key Sixth Amendment inquiry: whether the adjudication of guilt corresponding to the prison sentence is sufficiently reliable to permit incarceration. Deprived of counsel when tried, convicted, and sentenced, and unable to challenge the original judgment at a subsequent probation revocation hearing, a defendant in Shelton's circumstances faces incarceration on a conviction that has never been subjected to "the crucible of meaningful adversarial testing," United The Sixth Amendment does not countenance this result. In a variation on amicus' position, the dissent would limit review in this case to the question whether the imposition of Shelton's suspended sentence required appointment of counsel, answering that question "plainly no" because such a step "does not deprive a defendant of his personal liberty." Post, at 676. Only if the sentence is later activated, the dissent contends, need the Court "ask whether the procedural safeguards attending the imposition of [Shelton's] sentence comply with the Constitution." Severing the analysis in this manner makes little sense. One cannot assess the constitutionality of imposing a suspended sentence while simultaneously walling off the procedures that will precede its activation. The dissent imagines a set of safeguards Alabama might provide at the probation revocation stage sufficient to cure its failure to appoint counsel prior to sentencing, including, perhaps, "complete retrial of the misdemeanor violation with assistance of counsel," post, at 677. But there is no cause for speculation about Alabama's procedures; they are established by Alabama statute and decisional law, see at 666 and this page, and they bear no resemblance to those the dissent invents in its effort to sanction the prospect of Shelton's imprisonment on *668 an uncounseled conviction.[5] Assessing the issue before us in light of actual circumstances, we do not comprehend how the procedures Alabama in fact provides at the probation revocation hearing could bring Shelton's sentence within constitutional bounds.[6] Nor do we agree with amicus or the dissent that our holding will "substantially limit the states' ability" to impose probation, Fried Brief 22, or encumber them with a "large, new burden," post, at 680. Most jurisdictions already provide a state-law right to appointed counsel more generous than that afforded by the Federal Constitution. See *669 511 U. S., -749, n. 12. All but 16 States, for example, would provide counsel to a defendant in Shelton's circumstances, either because he received a substantial fine[7] or because state law authorized incarceration for the charged offense[8] or provided for a maximum prison term of one year.[9] See Ala. Code 13A-6-22, 13A-5-7(a)(1), 13A— 5-12(a)(1) There is thus scant reason to believe that a rule conditioning imposition of a suspended sentence on provision of appointed counsel would affect existing practice *670 in the large majority of the States.[10] And given the current commitment of most jurisdictions to affording courtappointed counsel to indigent misdemeanants while simultaneously preserving the option of probationary punishment, we do not share amicus' concern that other States may lack the capacity and resources to do the same. Moreover, even if amicus is correct that "some courts and jurisdictions at least [can]not bear" the costs of the rule we confirm today, Fried Brief 23, those States need not abandon probation or equivalent measures as viable forms of punishment. *671 Although they may not attach probation to an imposed and suspended prison sentence, States unable or unwilling routinely to provide appointed counsel to misdemeanants in Shelton's situation are not without recourse to another option capable of yielding a similar result. That option is pretrial probation, employed in some form by at least 23 States. See App. to Reply Brief for National Association of Criminal Defense Lawyers as Amicus Curiae 1a—2a (collecting state statutes). Under such an arrangement, the prosecutor and defendant agree to the defendant's participation in a pretrial rehabilitation program,[11] which includes conditions typical of post-trial probation. The adjudication of guilt and imposition of sentence for the underlying offense then occur only if and when the defendant breaches those conditions. ; see, e. g., -56e ; Pa. Rules Crim. Proc. 310-320, 316 (2002) ("The conditions of the [pretrial rehabilitation] program may be such as may be imposed with respect to probation after conviction of a crime."); N. Y. Crim. Proc. Law 170.55(3) (pretrial "adjournment in contemplation of dismissal" may require defendant "to observe certain specified conditions of conduct").[12] Like the regime urged by amicus, this system reserves the appointed-counsel requirement for the "small percentage" *672 of cases in which incarceration proves necessary, Fried Brief thus allowing a State to "supervise a course of rehabilitation" without providing a lawyer every time it wishes to pursue such a course, Unlike amicus ` position, however, pretrial probation also respects the constitutional imperative that "no person may be imprisoned for any offense unless he was represented by counsel at his trial," 407 U. S., C Alabama concedes that activation of a suspended sentence results in the imprisonment of an uncounseled defendant "for a term that relates to the original offense" and therefore "crosses the line of `actual imprisonment' " established in and Scott. Reply Brief to Amicus Curiae Professor Charles Fried 8. Shelton cannot be imprisoned, Alabama thus acknowledges, "unless the State has afforded him the right to assistance of appointed counsel in his defense," Scott, 440 U. S.,4; see Reply Brief 9. Alabama maintains, however, that there is no constitutional barrier to imposition of a suspended sentence that can never be enforced; the State therefore urges reversal of the Alabama Supreme Court's judgment insofar as it vacated the term of probation Shelton was ordered to serve. In effect, Alabama invites us to regard two years' probation for Shelton as a separate and independent sentence, which "the State would have the same power to enforce [as] a judgment of a mere fine." Tr. of Oral Arg. 6. Scott, Alabama emphasizes, squarely held that a fine-only sentence does not trigger a right to court-appointed counsel, Tr. of Oral Arg. 6; similarly, Alabama maintains, probation uncoupled from a prison sentence should trigger no immediate right to appointed counsel. Seen as a freestanding sentence, Alabama further asserts, probation could be enforced, as a criminal fine or restitution order could, in a contempt proceeding. *673 See Reply Brief 11-12; Reply Brief to Amicus Curiae Professor Charles Fried 10-13; Tr. of Oral Arg. 7. Alabama describes the contempt proceeding it envisions as one in which Shelton would receive "the full panoply of due process," including the assistance of counsel. Reply Brief 12. Any sanction imposed would be for "postconviction wrongdoing," not for the offense of conviction. Reply Brief to Amicus Curiae Professor Charles Fried 11. "The maximum penalty faced would be a $100 fine and five days' imprisonment," Reply Brief 12 (citing Ala. Code 12— 11-30(5) ), not the 30 days ordered and suspended by the Alabama Circuit Court, see There is not so much as a hint, however, in the decision of the Supreme Court of Alabama, that Shelton's probation term is separable from the prison term to which it was tethered. Absent any prior presentation of the position the State now takes,[13] we resist passing on it in the first instance. Our resistance to acting as a court of first view instead of one of review is heightened by the Alabama Attorney General's acknowledgment at oral argument that he did not know of any State that imposes, postconviction, on a par with a fine, a term of probation unattached to a suspended sentence. Tr. of Oral Arg. 8. The novelty of the State's current position is further marked by the unqualified statement in Alabama's opening brief that, "[b]y reversing Shelton's suspended sentence, the [Supreme Court of Alabama] correspondingly vacated the two-year probationary term." Brief for Petitioner 6. *674 In short, Alabama has developed its position late in this litigation and before the wrong forum. It is for the Alabama Supreme Court to consider before this Court does whether the suspended sentence alone is invalid, leaving Shelton's probation term freestanding and independently effective. See Hortonville Joint School Dist. No. 4 U.S. 482, We confine our review to the ruling the Alabama Supreme Court made in the case as presented to it: "[A] defendant who receives a suspended or probated sentence to imprisonment has a constitutional right to counsel." App. 40 ; see Brief for Petitioner 6. We find no infirmity in that holding. * * * Satisfied that Shelton is entitled to appointed counsel at the critical stage when his guilt or innocence of the charged crime is decided and his vulnerability to imprisonment is determined, we affirm the judgment of the Supreme Court of Alabama. It is so ordered.

Justice Scalia

dissenting

Alabama v. Shelton

2002-05-20

https://www.courtlistener.com/opinion/118507/alabama-v-shelton/

https://www.courtlistener.com/api/rest/v3/clusters/118507/

2001-050

In Argersinger v. Hamlin, 407 U.S. 25, 37 (1972), we held that "absent a knowing and intelligent waiver, no person may be imprisoned for any offense . . . unless he was represented by counsel at his trial." (Emphasis added.) Although, we said, the "run of misdemeanors will not be affected" by this rule, "in those that end up in the actual deprivation of a person's liberty, the accused will receive the benefit" of appointed counsel. Id., at 40 (emphasis added). We affirmed this rule in Scott v. Illinois, 440 U.S. 367 (1979), drawing a bright line between imprisonment and *675 the mere threat of imprisonment: "[T]he central premise of Argersinger —that actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment —is eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel." Id., at 373 (emphasis added). We have repeatedly emphasized actual imprisonment as the touchstone of entitlement to appointed counsel. See, e. g., Glover v. United States, 531 U.S. 198, 203 (2001) ("any amount of actual jail time has Sixth Amendment significance" (emphasis added)); M. L. B. v. S. L. J., 519 U.S. 102, 113 (1996) ("right [to appointed counsel] does not extend to nonfelony trials if no term of imprisonment is actually imposed " (emphasis added)); Lassiter v. Department of Social Servs. of Durham Cty., 452 U.S. 18, 26 (1981) (the Court "has refused to extend the right to appointed counsel to include prosecutions which, though criminal, do not result in the defendant's loss of personal liberty " (emphasis added)). Today's decision ignores this long and consistent jurisprudence, extending the misdemeanor right to counsel to cases bearing the mere threat of imprisonment. Respondent's 30-day suspended sentence, and the accompanying 2-year term of probation, are invalidated for lack of appointed counsel even though respondent has not suffered, and may never suffer, a deprivation of liberty. The Court holds that the suspended sentence violates respondent's Sixth Amendment right to counsel because it "may `end up in the actual deprivation of [respondent's] liberty,' " ante, at 658 (emphasis added), if he someday violates the terms of probation, if a court determines that the violation merits revocation of probation, Ala. Code § 15-22-54(d)(1) (1995), and if the court determines that no other punishment will "adequately protect the community from further criminal activity" or "avoid depreciating the seriousness of the violation," § 15-22— 54(d)(4). And to all of these contingencies there must yet *676 be added, before the Court's decision makes sense, an element of rank speculation. Should all these contingencies occur, the Court speculates, the Alabama Supreme Court would mechanically apply its decisional law applicable to routine probation revocation (which establishes procedures that the Court finds inadequate) rather than adopt special procedures for situations that raise constitutional questions in light of Argersinger and Scott. Ante, at 666-668. The Court has miraculously divined how the Alabama justices would resolve a constitutional question.[1] But that question is not the one before us, and the Court has no business offering an advisory opinion on its answer. We are asked to decide whether "imposition of a suspended or conditional sentence in a misdemeanor case invoke[s] a defendant's Sixth Amendment right to counsel." Pet. for Cert. i. Since imposition of a suspended sentence does not deprive a defendant of his personal liberty, the answer to that question is plainly no. In the future, if and when the State of Alabama seeks to imprison respondent on the previously suspended sentence, we can ask whether the procedural safeguards attending the imposition of that sentence comply with the Constitution. But that question is not before us now. Given our longstanding refusal to issue advisory opinions, Hayburn's Case, 2 Dall. 409 (1792), particularly with respect to constitutional questions (as to which we seek to avoid even non -advisory opinions, Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring)), I am amazed by the Court's conclusion that it "makes little *677 sense" to limit today's decision to the question presented (the constitutionality of imposing a suspended sentence on uncounseled misdemeanants) and to avoid a question not presented (the constitutionality of the "procedures that will precede its activation"). Ante, at 667. Although the Court at one point purports to limit its decision to suspended sentences imposed on uncounseled misdemeanants in States, like Alabama, that offer only "minimal procedures" during probation revocation hearings, see ante, at 668, n. 5, the text of today's opinion repudiates that limitation. In answering the question we asked amicus to address—whether "the Sixth Amendment permit[s] activation of a suspended sentence upon the defendant's violation of the terms of probation"—the Court states without qualification that "it does not." Ante, at 662. Thus, when the Court says it "doubt[s]" that any procedures attending the reimposition of the suspended sentence "could satisfy the Sixth Amendment," ante, at 668, n. 5, it must be using doubt as a euphemism for certitude. The Court has no basis, moreover, for its "doubt." Surely the procedures attending reimposition of a suspended sentence would be adequate if they required, upon the defendant's request, complete retrial of the misdemeanor violation with assistance of counsel. By what right does the Court deprive the State of that option?[2] It may well be a sensible *678 option, since most defendants will be induced to comply with the terms of their probation by the mere threat of a retrial that could send them to jail, and since the expense of those rare, counseled retrials may be much less than the expense of providing counsel initially in all misdemeanor cases that bear a possible sentence of imprisonment. And it may well be that, in some cases, even procedures short of complete retrial will suffice.[3] *679 Our prior opinions placed considerable weight on the practical consequences of expanding the right to appointed counsel beyond cases of actual imprisonment. See, e. g., Scott, 440 U. S., at 373 (any extension of Argersinger would "impose unpredictable, but necessarily substantial, costs on 50 quite diverse States"); see also Argersinger, 407 U. S., at 56-62 (Powell, J., concurring in result) (same). Today, the Court gives this consideration the back of its hand. Its observation that "[a]ll but 16 States" already appoint counsel for defendants like respondent, ante, at 669, is interesting but quite irrelevant, since today's holding is not confined to defendants like respondent. Appointed counsel must henceforth be offered before any defendant can be awarded a suspended sentence, no matter how short. Only 24 States have announced a rule of this scope.[4] Thus, the Court's decision *680 imposes a large, new burden on a majority of the States, including some of the poorest (e. g., Alabama, Arkansas, and Mississippi, see U. S. Dept. of Commerce, Bureau of Census, *681 Statistical Abstract of the United States 426 (2001)). That burden consists not only of the cost of providing state-paid counsel in cases of such insignificance that even financially prosperous defendants sometimes forgo the expense of hired counsel; but also the cost of enabling courts and prosecutors to respond to the "over-lawyering" of minor cases. See Argersinger, supra, at 58-59 (Powell, J.,concurring in result). Nor should we discount the burden placed on the minority 24 States that currently provide counsel: that they keep their current disposition forever in place, however imprudent experience proves it to be. Today's imposition upon the States finds justification neither in the text of the Constitution, nor in the settled practices of our people, nor in the prior jurisprudence of this Court. I respectfully dissent.

In we held that "absent a knowing and intelligent waiver, no person may be imprisoned for any offense unless he was represented by counsel at his trial." (Emphasis added.) Although, we said, the "run of misdemeanors will not be affected" by this rule, "in those that end up in the actual deprivation of a person's liberty, the accused will receive the benefit" of appointed counsel. We affirmed this rule in drawing a bright line between imprisonment and *675 the mere threat of imprisonment: "[T]he central premise of —that actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment —is eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel." at 3 We have repeatedly emphasized actual imprisonment as the touchstone of entitlement to appointed counsel. See, e. g., ("any amount of actual jail time has Sixth Amendment significance" ); M. L. ("right [to appointed counsel] does not extend to nonfelony trials if no term of imprisonment is actually imposed " ); (the Court "has refused to extend the right to appointed counsel to include prosecutions which, though criminal, do not result in the defendant's loss of personal liberty " ). Today's decision ignores this long and consistent jurisprudence, extending the misdemeanor right to counsel to cases bearing the mere threat of imprisonment. Respondent's 30-day suspended sentence, and the accompanying 2-year term of probation, are invalidated for lack of appointed counsel even though respondent has not suffered, and may never suffer, a deprivation of liberty. The Court holds that the suspended sentence violates respondent's Sixth Amendment right to counsel because it "may `end up in the actual deprivation of [respondent's] liberty,' " ante, at 658 if he someday violates the terms of probation, if a court determines that the violation merits revocation of probation, (d)(1) (1995), and if the court determines that no other punishment will "adequately protect the community from further criminal activity" or "avoid depreciating the seriousness of the violation," 15-22— 54(d)(4). And to all of these contingencies there must yet *676 be added, before the Court's decision makes sense, an element of rank speculation. Should all these contingencies occur, the Court speculates, the Alabama Supreme Court would mechanically apply its decisional law applicable to routine probation revocation (which establishes procedures that the Court finds inadequate) rather than adopt special procedures for situations that raise constitutional questions in light of and Ante, at 666-668. The Court has miraculously divined how the Alabama justices would resolve a constitutional question.[1] But that question is not the one before us, and the Court has no business offering an advisory opinion on its answer. We are asked to decide whether "imposition of a suspended or conditional sentence in a misdemeanor case invoke[s] a defendant's Sixth Amendment right to counsel." Pet. for Cert. i. Since imposition of a suspended sentence does not deprive a defendant of his personal liberty, the answer to that question is plainly no. In the future, if and when the State of Alabama seeks to imprison respondent on the previously suspended sentence, we can ask whether the procedural safeguards attending the imposition of that sentence comply with the Constitution. But that question is not before us now. Given our longstanding refusal to issue advisory opinions, Hayburn's Case, particularly with respect to constitutional questions ), I am amazed by the Court's conclusion that it "makes little *677 sense" to limit today's decision to the question presented (the constitutionality of imposing a suspended sentence on uncounseled misdemeanants) and to avoid a question not presented (the constitutionality of the "procedures that will precede its activation"). Ante, at 667. Although the Court at one point purports to limit its decision to suspended sentences imposed on uncounseled misdemeanants in States, like Alabama, that offer only "minimal procedures" during probation revocation hearings, see ante, at 668, n. 5, the text of today's opinion repudiates that limitation. In answering the question we asked amicus to address—whether "the Sixth Amendment permit[s] activation of a suspended sentence upon the defendant's violation of the terms of probation"—the Court states without qualification that "it does not." Ante, at 662. Thus, when the Court says it "doubt[s]" that any procedures attending the reimposition of the suspended sentence "could satisfy the Sixth Amendment," ante, at 668, n. 5, it must be using doubt as a euphemism for certitude. The Court has no basis, moreover, for its "doubt." Surely the procedures attending reimposition of a suspended sentence would be adequate if they required, upon the defendant's request, complete retrial of the misdemeanor violation with assistance of counsel. By what right does the Court deprive the State of that option?[2] It may well be a sensible *678 option, since most defendants will be induced to comply with the terms of their probation by the mere threat of a retrial that could send them to jail, and since the expense of those rare, counseled retrials may be much less than the expense of providing counsel initially in all misdemeanor cases that bear a possible sentence of imprisonment. And it may well be that, in some cases, even procedures short of complete retrial will suffice.[3] *679 Our prior opinions placed considerable weight on the practical consequences of expanding the right to appointed counsel beyond cases of actual imprisonment. See, e. g., 440 U. S., at 3 ; see also -62 (same). Today, the Court gives this consideration the back of its hand. Its observation that "[a]ll but 16 States" already appoint counsel for defendants like respondent, ante, at 669, is interesting but quite irrelevant, since today's holding is not confined to defendants like respondent. Appointed counsel must henceforth be offered before any defendant can be awarded a suspended sentence, no matter how short. Only 24 States have announced a rule of this scope.[4] Thus, the Court's decision *680 imposes a large, new burden on a majority of the States, including some of the poorest ). That burden consists not only of the cost of providing state-paid counsel in cases of such insignificance that even financially prosperous defendants sometimes forgo the expense of hired counsel; but also the cost of enabling courts and prosecutors to respond to the "over-lawyering" of minor cases. See Nor should we discount the burden placed on the minority 24 States that currently provide counsel: that they keep their current disposition forever in place, however imprudent experience proves it to be. Today's imposition upon the States finds justification neither in the text of the Constitution, nor in the settled practices of our people, nor in the prior jurisprudence of this Court. I respectfully dissent.

Justice Scalia

majority

Arthur Andersen LLP v. Carlisle

2009-05-04

https://www.courtlistener.com/opinion/145878/arthur-andersen-llp-v-carlisle/

https://www.courtlistener.com/api/rest/v3/clusters/145878/

2008-053

Section 3 of the Federal Arbitration Act (FAA) entitles litigants in federal court to a stay of any action that is “referable to arbitration under an agreement in writing.” 9 U.S. C. §3. Section 16(a)(1)(A), in turn, allows an ap peal from “an order . . . refusing a stay of any action under section 3.” We address in this case whether appellate courts have jurisdiction under §16(a) to review denials of stays requested by litigants who were not parties to the relevant arbitration agreement, and whether §3 can ever mandate a stay in such circumstances. I Respondents Wayne Carlisle, James Bushman, and Gary Strassel set out to minimize their taxes from the 1999 sale of their construction-equipment company. Ar thur Andersen LLP, a firm that had long served as their company’s accountant, auditor, and tax adviser, intro duced them to Bricolage Capital, LLC, which in turn referred them for legal advice to Curtis, Mallet-Prevost, Colt & Mosle, LLP. According to respondents, these ad visers recommended a “leveraged option strategy” tax 2 ARTHUR ANDERSEN LLP v. CARLISLE Opinion of the Court shelter designed to create illusory losses through foreign currency-exchange options. As a part of the scheme, respondents invested in various stock warrants through newly created limited liability corporations (LLCs), which are also respondents in this case. The respondent LLCs entered into investment-management agreements with Bricolage, specifying that “[a]ny controversy arising out of or relating to this Agreement or the br[ea]ch thereof, shall be settled by arbitration conducted in New York, New York, in accordance with the Commercial Arbitration Rules of the American Arbitration Association.” App. 80– 81, 99–100, 118–119. As with all that seems too good to be true, a controversy did indeed arise. The warrants respondents purchased turned out to be almost entirely worthless, and the Inter nal Revenue Service (IRS) determined in August 2000 that the “leveraged option strategy” scheme was an illegal tax shelter. The IRS initially offered conditional amnesty to taxpayers who had used such arrangements, but petition ers failed to inform respondents of that option. Respon dents ultimately entered into a settlement program in which they paid the IRS all taxes, penalties, and interest owed. Respondents filed this diversity suit in the Eastern District of Kentucky against Bricolage, Arthur Andersen and others1 (all except Bricolage and its employees here inafter referred to as petitioners), alleging fraud, civil conspiracy, malpractice, breach of fiduciary duty, and —————— 1 Also named in the suit were two employees of Bricolage (Andrew Beer and Samyak Veera); Curtis, Mallet-Prevost, Colt & Mosle, LLP; William Bricker (the lawyer respondents worked with at the law firm); Prism Connectivity Ventures, LLC (the entity from whom the worthless warrants were purchased); Integrated Capital Associates, Inc. (a prior owner of the worthless warrants who had also been a client of the law firm); and Intercontinental Pacific Group, Inc. (a firm with the same principals as Integrated Capital Associates). Cite as: 556 U. S. ____ (2009) 3 Opinion of the Court negligence. Petitioners moved to stay the action, invoking §3 of the FAA and arguing that the principles of equitable estoppel demanded that respondents arbitrate their claims under their investment agreements with Bricolage.2 The District Court denied the motions. Petitioners filed an interlocutory appeal, which the Court of Appeals for the Sixth Circuit dismissed for want of jurisdiction. Carlisle v. Curtis, Mallet-Prevost, Colt & Mosle, LLP, 521 F.3d 597, 602 (2008). We granted certio rari, 555 U. S. ___ (2008). II Ordinarily, courts of appeals have jurisdiction only over “final decisions” of district courts. 28 U.S. C. §1291. The FAA, however, makes an exception to that finality re quirement, providing that “an appeal may be taken from . . . an order . . . refusing a stay of any action under section 3 of this title.” 9 U.S. C. §16(a)(1)(A). By that provision’s clear and unambiguous terms, any litigant who asks for a stay under §3 is entitled to an immediate appeal from denial of that motion—regardless of whether the litigant is in fact eligible for a stay. Because each petitioner in this case explicitly asked for a stay pursuant to §3, App. 52, 54, 63, 65, the Sixth Circuit had jurisdiction to review the District Court’s denial. The courts that have declined jurisdiction over §3 ap peals of the sort at issue here have done so by conflating the jurisdictional question with the merits of the appeal. They reason that because stay motions premised on equi table estoppel seek to expand (rather than simply vindi cate) agreements, they are not cognizable under §§3 and 4, and therefore the relevant motions are not actually “un der” those provisions. See, in addition to the opinion —————— 2 Bricolage also moved for a stay under §3, but it filed for bankruptcy while its motion was pending, and the District Court denied the motion as moot. 4 ARTHUR ANDERSEN LLP v. CARLISLE Opinion of the Court below, 521 F.3d, at 602, DSMC Inc. v. Convera Corp., 349 F.3d 679, 682–685 (CADC 2003); In re Universal Serv. Fund Tel. Billing Practice Litigation v. Sprint Communi cations Co., 428 F.3d 940, 944–945 (CA10 2005). The dissent makes this step explicit, by reading the appellate jurisdictional provision of §16 as “calling for a look through” to the substantive provisions of §3. Post, at 2. Jurisdiction over the appeal, however, “must be deter mined by focusing upon the category of order appealed from, rather than upon the strength of the grounds for reversing the order.” Behrens v. Pelletier, 516 U.S. 299, 311 (1996).3 The jurisdictional statute here unambigu ously makes the underlying merits irrelevant, for even utter frivolousness of the underlying request for a §3 stay cannot turn a denial into something other than “an order . . . refusing a stay of any action under section 3.” 9 U.S. C. §16(a). Respondents argue that this reading of §16(a) will pro duce a long parade of horribles, enmeshing courts in fact intensive jurisdictional inquiries and permitting frivolous interlocutory appeals. Even if these objections could —————— 3 Federal courts lack subject-matter jurisdiction when an asserted federal claim is “ ‘so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy.’ ” Steel Co. v. Citizens for Better Envi ronment, 523 U.S. 83, 89 (1998) (quoting Oneida Indian Nation of N. Y. v. County of Oneida, 414 U.S. 661, 666 (1974)). Respondents have not relied upon this line of cases as an alternative rationale for rejection of jurisdiction, and there are good reasons for treating subject-matter jurisdiction differently, in that respect, from the appellate jurisdiction here conferred. A frivolous federal claim, if sufficient to confer jurisdic tion, would give the court power to hear related state-law claims, see 28 U.S. C. §1367; no such collateral consequences are at issue here. And while an insubstantial federal claim can be said not to “aris[e] under the Constitution, laws, or treaties of the United States,” §1331, insub stantiality of the merits can hardly convert a judge’s “order . . . refusing a stay” into an “order . . . refusing” something else. But we need not resolve this question today. Cite as: 556 U. S. ____ (2009) 5 Opinion of the Court surmount the plain language of the statute, we would not be persuaded. Determination of whether §3 was invoked in a denied stay request is immeasurably more simple and less factbound than the threshold determination respon dents would replace it with: whether the litigant was a party to the contract (an especially difficult question when the written agreement is not signed). It is more appropri ate to grapple with that merits question after the court has accepted jurisdiction over the case. Second, there are ways of minimizing the impact of abusive appeals. Appel late courts can streamline the disposition of meritless claims and even authorize the district court’s retention of jurisdiction when an appeal is certified as frivolous. See Behrens, supra, at 310–311. And, of course, those inclined to file dilatory appeals must be given pause by courts’ authority to “award just damages and single or double costs to the appellee” whenever an appeal is “frivolous.” Fed. Rule App. Proc. 38. III Even if the Court of Appeals were correct that it had no jurisdiction over meritless appeals, its ground for finding this appeal meritless was in error. We take the trouble to address that alternative ground, since if the Court of Appeals is correct on the merits point we will have awarded petitioners a remarkably hollow victory. We consider, therefore, the Sixth Circuit’s underlying deter mination that those who are not parties to a written arbi tration agreement are categorically ineligible for relief. Section 2—the FAA’s substantive mandate—makes written arbitration agreements “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of a contract.” That provision creates substantive federal law regarding the enforceabil ity of arbitration agreements, requiring courts “to place such agreements upon the same footing as other con 6 ARTHUR ANDERSEN LLP v. CARLISLE Opinion of the Court tracts.” Volt Information Sciences, Inc. v. Board of Trus tees of Leland Stanford Junior Univ., 489 U.S. 468, 478 (1989) (internal quotation marks omitted). Section 3, in turn, allows litigants already in federal court to invoke agreements made enforceable by §2. That provision re quires the court, “on application of one of the parties,”4 to stay the action if it involves an “issue referable to arbitra tion under an agreement in writing.” 9 U.S. C. §3. Neither provision purports to alter background princi ples of state contract law regarding the scope of agree ments (including the question of who is bound by them). Indeed §2 explicitly retains an external body of law gov erning revocation (such grounds “as exist at law or in equity”).5 And we think §3 adds no substantive restriction to §2’s enforceability mandate. “[S]tate law,” therefore, is applicable to determine which contracts are binding under §2 and enforceable under §3 “if that law arose to govern issues concerning the validity, revocability, and enforce ability of contracts generally.” Perry v. Thomas, 482 U.S. 483, 493, n. 9 (1987). See also First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995). Because “tradi —————— 4 Respondents do not contest that the term “parties” in §3 refers to parties to the litigation rather than parties to the contract. The adja cent provision, which explicitly refers to the “subject matter of a suit arising out of the controversy between the parties,” 9 U.S. C. §4, unambiguously refers to adversaries in the action, and “identical words and phrases within the same statute should normally be given the same meaning,” Powerex Corp. v. Reliant Energy Services, Inc., 551 U.S. 224, 232 (2007). Even without benefit of that canon, we would not be disposed to believe that the statute allows a party to the contract who is not a party to the litigation to apply for a stay of the proceeding. 5 We have said many times that federal law requires that “questions of arbitrability . . . be addressed with a healthy regard for the federal policy favoring arbitration.” Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U.S. 1, 24–25 (1983). Whatever the mean ing of this vague prescription, it cannot possibly require the disregard of state law permitting arbitration by or against nonparties to the written arbitration agreement. Cite as: 556 U. S. ____ (2009) 7 Opinion of the Court tional principles” of state law allow a contract to be en forced by or against nonparties to the contract through “assumption, piercing the corporate veil, alter ego, incor poration by reference, third-party beneficiary theories, waiver and estoppel,” 21 R. Lord, Williston on Contracts §57:19, p. 183 (4th ed. 2001), the Sixth Circuit’s holding that nonparties to a contract are categorically barred from §3 relief was error. Respondents argue that, as a matter of federal law, claims to arbitration by nonparties are not “referable to arbitration under an agreement in writing,” 9 U.S. C. §3 (emphasis added), because they “seek to bind a signatory to an arbitral obligation beyond that signatory’s strictly contractual obligation to arbitrate,” Brief for Respondents 26. Perhaps that would be true if §3 mandated stays only for disputes between parties to a written arbitration agreement. But that is not what the statute says. It says that stays are required if the claims are “referable to arbitration under an agreement in writing.” If a written arbitration provision is made enforceable against (or for the benefit of) a third party under state contract law, the statute’s terms are fulfilled.6 Respondents’ final fallback consists of reliance upon dicta in our opinions, such as the statement that “arbitra tion . . . is a way to resolve those disputes—but only those disputes—that the parties have agreed to submit to arbi tration,” First Options, supra, at 943, and the statement that “[i]t goes without saying that a contract cannot bind a —————— 6 We thus reject the dissent’s contention that contract law’s long standing endorsement of third-party enforcement is “a weak premise for inferring an intent to allow third parties to obtain a §3 stay,” post, at 2. It seems to us not weak at all, in light of the terms of the statute. There is no doubt that, where state law permits it, a third-party claim is “referable to arbitration under an agreement in writing.” It is not our role to conform an unambiguous statute to what we think “Con gress probably intended,” post, at 2. 8 ARTHUR ANDERSEN LLP v. CARLISLE Opinion of the Court nonparty,” EEOC v. Waffle House, Inc., 534 U.S. 279, 294 (2002). The former statement pertained to issues parties agreed to arbitrate, and the latter referred to an entity (the Equal Employment Opportunity Commission) which obviously had no third-party obligations under the con tract in question. Neither these nor any of our other cases have presented for decision the question whether arbitra tion agreements that are otherwise enforceable by (or against) third parties trigger protection under the FAA. Respondents may be correct in saying that courts’ appli cation of equitable estoppel to impose an arbitration agreement upon strangers to the contract has been “somewhat loose.” Brief for Respondents 27, n. 15. But we need not decide here whether the relevant state con tract law recognizes equitable estoppel as a ground for enforcing contracts against third parties, what standard it would apply, and whether petitioners would be entitled to relief under it. These questions have not been briefed before us and can be addressed on remand. It suffices to say that no federal law bars the State from allowing peti tioners to enforce the arbitration agreement against re spondents and that §3 would require a stay in this case if it did. * * * We hold that the Sixth Circuit had jurisdiction to review the denial of petitioners’ request for a §3 stay and that a litigant who was not a party to the relevant arbitration agreement may invoke §3 if the relevant state contract law allows him to enforce the agreement. The judgment of the Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 556 U. S. ____ (2009) 1 SOUTER, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 08–146 _________________ ARTHUR ANDERSEN LLP, ET AL., PETITIONERS v. WAYNE CARLISLE ET AL.

Section 3 of the Federal Arbitration Act (FAA) entitles litigants in federal court to a stay of any action that is “referable to arbitration under an agreement in writing.” 9 U.S. C. Section 16(a)(1)(A), in turn, allows an ap peal from “an order refusing a stay of any action under section 3.” We address in this case whether appellate courts have jurisdiction under to review denials of stays requested by litigants who were not parties to the relevant arbitration agreement, and whether can ever mandate a stay in such circumstances. I Respondents Wayne Carlisle, James Bushman, and Gary Strassel set out to minimize their taxes from the 1999 sale of their construction-equipment company. Ar thur Andersen LLP, a firm that had long served as their company’s accountant, auditor, and tax adviser, intro duced them to Bricolage Capital, LLC, which in turn referred them for legal advice to Curtis, Mallet-Prevost, Colt & Mosle, LLP. According to respondents, these ad visers recommended a “leveraged option strategy” tax 2 ARTHUR ANDERSEN LLP v. CARLISLE Opinion of the Court shelter designed to create illusory losses through foreign currency-exchange options. As a part of the scheme, respondents invested in various stock warrants through newly created limited liability corporations (LLCs), which are also respondents in this case. The respondent LLCs entered into investment-management agreements with Bricolage, specifying that “[a]ny controversy arising out of or relating to this Agreement or the br[ea]ch thereof, shall be settled by arbitration conducted in New York, New York, in accordance with the Commercial Arbitration Rules of the American Arbitration Association.” App. 80– 81, 99–100, 118–119. As with all that seems too good to be true, a controversy did indeed arise. The warrants respondents purchased turned out to be almost entirely worthless, and the Inter nal Revenue Service (IRS) determined in August 2000 that the “leveraged option strategy” scheme was an illegal tax shelter. The IRS initially offered conditional amnesty to taxpayers who had used such arrangements, but petition ers failed to inform respondents of that option. Respon dents ultimately entered into a settlement program in which they paid the IRS all taxes, penalties, and interest owed. Respondents filed this diversity suit in the Eastern District of Kentucky against Bricolage, Arthur Andersen and others1 (all except Bricolage and its employees here inafter referred to as petitioners), alleging fraud, civil conspiracy, malpractice, breach of fiduciary duty, and —————— 1 Also named in the suit were two employees of Bricolage (Andrew Beer and Samyak Veera); Curtis, Mallet-Prevost, Colt & Mosle, LLP; William Bricker (the lawyer respondents worked with at the law firm); Prism Connectivity Ventures, LLC (the entity from whom the worthless warrants were purchased); Integrated Capital Associates, Inc. (a prior owner of the worthless warrants who had also been a client of the law firm); and Intercontinental Pacific Group, Inc. (a firm with the same principals as Integrated Capital Associates). Cite as: 556 U. S. (2009) 3 Opinion of the Court negligence. Petitioners moved to stay the action, invoking of the FAA and arguing that the principles of equitable estoppel demanded that respondents arbitrate their claims under their investment agreements with Bricolage.2 The District Court denied the motions. Petitioners filed an interlocutory appeal, which the Court of Appeals for the Sixth Circuit dismissed for want of jurisdiction. We granted certio rari, 555 U. S. II Ordinarily, courts of appeals have jurisdiction only over “final decisions” of district courts. 28 U.S. C. The FAA, however, makes an exception to that finality re quirement, providing that “an appeal may be taken from an order refusing a stay of any action under section 3 of this title.” 9 U.S. C. (1)(A). By that provision’s clear and unambiguous terms, any litigant who asks for a stay under is entitled to an immediate appeal from denial of that motion—regardless of whether the litigant is in fact eligible for a stay. Because each petitioner in this case explicitly asked for a stay pursuant to App. 52, 54, 63, 65, the Sixth Circuit had jurisdiction to review the District Court’s denial. The courts that have declined jurisdiction over ap peals of the sort at issue here have done so by conflating the jurisdictional question with the merits of the appeal. They reason that because stay motions premised on equi table estoppel seek to expand (rather than simply vindi cate) agreements, they are not cognizable under § and 4, and therefore the relevant motions are not actually “un der” those provisions. See, in addition to the opinion —————— 2 Bricolage also moved for a stay under but it filed for bankruptcy while its motion was pending, and the District Court denied the motion as moot. 4 ARTHUR ANDERSEN LLP v. CARLISLE Opinion of the Court 521 F.3d, at DSMC Inc. v. Convera Corp., 349 F.3d 679, 682–685 (CADC 2003); In re Universal Serv. Fund Tel. Billing Practice The dissent makes this step explicit, by reading the appellate jurisdictional provision of as “calling for a look through” to the substantive provisions of Post, at 2. Jurisdiction over the appeal, however, “must be deter mined by focusing upon the category of order appealed from, rather than upon the strength of the grounds for reversing the order.” 311 (1996).3 The jurisdictional statute here unambigu ously makes the underlying merits irrelevant, for even utter frivolousness of the underlying request for a stay cannot turn a denial into something other than “an order refusing a stay of any action under section 3.” 9 U.S. C. Respondents argue that this reading of will pro duce a long parade of horribles, enmeshing courts in fact intensive jurisdictional inquiries and permitting frivolous interlocutory appeals. Even if these objections could —————— 3 Federal courts lack subject-matter jurisdiction when an asserted federal claim is “ ‘so insubstantial, implausible, foreclosed by prior decisions of this Court, or otherwise completely devoid of merit as not to involve a federal controversy.’ ” Steel ). Respondents have not relied upon this line of cases as an alternative rationale for rejection of jurisdiction, and there are good reasons for treating subject-matter jurisdiction differently, in that respect, from the appellate jurisdiction here conferred. A frivolous federal claim, if sufficient to confer jurisdic tion, would give the court power to hear related state-law claims, see 28 U.S. C. no such collateral consequences are at issue here. And while an insubstantial federal claim can be said not to “aris[e] under the Constitution, laws, or treaties of the United States,” insub stantiality of the merits can hardly convert a judge’s “order refusing a stay” into an “order refusing” something else. But we need not resolve this question today. Cite as: 556 U. S. (2009) 5 Opinion of the Court surmount the plain language of the statute, we would not be persuaded. Determination of whether was invoked in a denied stay request is immeasurably more simple and less factbound than the threshold determination respon dents would replace it with: whether the litigant was a party to the contract (an especially difficult question when the written agreement is not signed). It is more appropri ate to grapple with that merits question after the court has accepted jurisdiction over the case. Second, there are ways of minimizing the impact of abusive appeals. Appel late courts can streamline the disposition of meritless claims and even authorize the district court’s retention of jurisdiction when an appeal is certified as frivolous. See at 310–311. And, of course, those inclined to file dilatory appeals must be given pause by courts’ authority to “award just damages and single or double costs to the appellee” whenever an appeal is “frivolous.” Fed. Rule App. Proc. 38. III Even if the Court of Appeals were correct that it had no jurisdiction over meritless appeals, its ground for finding this appeal meritless was in error. We take the trouble to address that alternative ground, since if the Court of Appeals is correct on the merits point we will have awarded petitioners a remarkably hollow victory. We consider, therefore, the Sixth Circuit’s underlying deter mination that those who are not parties to a written arbi tration agreement are categorically ineligible for relief. Section 2—the FAA’s substantive mandate—makes written arbitration agreements “valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of a contract.” That provision creates substantive federal law regarding the enforceabil ity of arbitration agreements, requiring courts “to place such agreements upon the same footing as other con 6 ARTHUR ANDERSEN LLP v. CARLISLE Opinion of the Court tracts.” Volt Information Sciences, 4 U.S. 468, (19) (internal quotation marks omitted). Section 3, in turn, allows litigants already in federal court to invoke agreements made enforceable by That provision re quires the court, “on application of one of the parties,”4 to stay the action if it involves an “issue referable to arbitra tion under an agreement in writing.” 9 U.S. C. Neither provision purports to alter background princi ples of state contract law regarding the scope of agree ments (including the question of who is bound by them). Indeed explicitly retains an external body of law gov erning revocation (such grounds “as exist at law or in equity”).5 And we think adds no substantive restriction to ’s enforceability mandate. “[S]tate law,” therefore, is applicable to determine which contracts are binding under and enforceable under “if that law arose to govern issues concerning the validity, revocability, and enforce ability of contracts generally.” Perry v. Thomas, 482 U.S. 483, 493, n. 9 (1987). See also First of Chicago, Because “tradi —————— 4 Respondents do not contest that the term “parties” in refers to parties to the litigation rather than parties to the contract. The adja cent provision, which explicitly refers to the “subject matter of a suit arising out of the controversy between the parties,” 9 U.S. C. unambiguously refers to adversaries in the action, and “identical words and phrases within the same statute should normally be given the same meaning,” Powerex Corp. v. Reliant Energy Services, Inc., 551 U.S. 224, 232 (2007). Even without benefit of that canon, we would not be disposed to believe that the statute allows a party to the contract who is not a party to the litigation to apply for a stay of the proceeding. 5 We have said many times that federal law requires that “questions of arbitrability be addressed with a healthy regard for the federal policy favoring arbitration.” Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., Whatever the mean ing of this vague prescription, it cannot possibly require the disregard of state law permitting arbitration by or against nonparties to the written arbitration agreement. Cite as: 556 U. S. (2009) 7 Opinion of the Court tional principles” of state law allow a contract to be en forced by or against nonparties to the contract through “assumption, piercing the corporate veil, alter ego, incor poration by reference, third-party beneficiary theories, waiver and estoppel,” 21 R. Lord, Williston on Contracts p. 183 (4th ed. 2001), the Sixth Circuit’s holding that nonparties to a contract are categorically barred from relief was error. Respondents argue that, as a matter of federal law, claims to arbitration by nonparties are not “referable to arbitration under an agreement in writing,” 9 U.S. C. (emphasis added), because they “seek to bind a signatory to an arbitral obligation beyond that signatory’s strictly contractual obligation to arbitrate,” Brief for Respondents 26. Perhaps that would be true if mandated stays only for disputes between parties to a written arbitration agreement. But that is not what the statute says. It says that stays are required if the claims are “referable to arbitration under an agreement in writing.” If a written arbitration provision is made enforceable against (or for the benefit of) a third party under state contract law, the statute’s terms are fulfilled.6 Respondents’ final fallback consists of reliance upon dicta in our opinions, such as the statement that “arbitra tion is a way to resolve those disputes—but only those disputes—that the parties have agreed to submit to arbi tration,” First and the statement that “[i]t goes without saying that a contract cannot bind a —————— 6 We thus reject the dissent’s contention that contract law’s long standing endorsement of third-party enforcement is “a weak premise for inferring an intent to allow third parties to obtain a stay,” post, at 2. It seems to us not weak at all, in light of the terms of the statute. There is no doubt that, where state law permits it, a third-party claim is “referable to arbitration under an agreement in writing.” It is not our role to conform an unambiguous statute to what we think “Con gress probably intended,” post, at 2. 8 ARTHUR ANDERSEN LLP v. CARLISLE Opinion of the Court nonparty,” (2002). The former statement pertained to issues parties agreed to arbitrate, and the latter referred to an entity (the Equal Employment Opportunity Commission) which obviously had no third-party obligations under the con tract in question. Neither these nor any of our other cases have presented for decision the question whether arbitra tion agreements that are otherwise enforceable by (or against) third parties trigger protection under the FAA. Respondents may be correct in saying that courts’ appli cation of equitable estoppel to impose an arbitration agreement upon strangers to the contract has been “somewhat loose.” Brief for Respondents 27, n. 15. But we need not decide here whether the relevant state con tract law recognizes equitable estoppel as a ground for enforcing contracts against third parties, what standard it would apply, and whether petitioners would be entitled to relief under it. These questions have not been briefed before us and can be addressed on remand. It suffices to say that no federal law bars the State from allowing peti tioners to enforce the arbitration agreement against re spondents and that would require a stay in this case if it did. * * * We hold that the Sixth Circuit had jurisdiction to review the denial of petitioners’ request for a stay and that a litigant who was not a party to the relevant arbitration agreement may invoke if the relevant state contract law allows him to enforce the agreement. The judgment of the Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 556 U. S. (2009) 1 SOUTER, J., dissenting SUPREME COURT OF THE UNITED STATES No. 08–146 ARTHUR ANDERSEN LLP, ET AL., PETITIONERS v. WAYNE CARLISLE ET AL.

Justice Souter

dissenting

Arthur Andersen LLP v. Carlisle

2009-05-04

https://www.courtlistener.com/opinion/145878/arthur-andersen-llp-v-carlisle/

https://www.courtlistener.com/api/rest/v3/clusters/145878/

2008-053

Section 16 of the Federal Arbitration Act (FAA) author­ izes an interlocutory appeal from the denial of a motion under §3 to stay a district court action pending arbitra­ tion. The question is whether it opens the door to such an appeal at the behest of one who has not signed a written arbitration agreement. Based on the longstanding con­ gressional policy limiting interlocutory appeals, I think the better reading of the statutory provisions disallows such an appeal, and I therefore respectfully dissent. Section 16(a) of the FAA provides that “[a]n appeal may be taken from . . . an order . . . refusing a stay of any ac­ tion under section 3 of this title.” 9 U.S. C. §16(a). The Court says that any litigant who asks for and is denied a §3 stay is entitled to an immediate appeal. Ante, at 3. The majority’s assumption is that “under section 3” is merely a labeling requirement, without substantive im­ port, but this fails to read §16 in light of the “firm congres­ sional policy against interlocutory or ‘piecemeal’ appeals.” Abney v. United States, 431 U.S. 651, 656 (1977). The right of appeal is “a creature of statute,” ibid., and Congress has granted the Federal Courts of Appeals juris­ diction to review “final decisions,” 28 U.S. C. §1291. “This insistence on finality and prohibition of piecemeal review 2 ARTHUR ANDERSEN LLP v. CARLISLE SOUTER, J., dissenting discourage undue litigiousness and leaden-footed admini­ stration of justice.” DiBella v. United States, 369 U.S. 121, 124 (1962). Congress has, however, “recognized the need of exceptions for interlocutory orders in certain types of proceedings where the damage of error unreviewed before the judgment is definitive and complete . . . has been deemed greater than the disruption caused by inter­ mediate appeal.” Ibid. Section 16 functions as one such exception, but departures from “the dominant rule in federal appellate practice,” 9 J. Moore, B. Ward, & J. Lucas, Moore’s Federal Practice ¶110.06 (2d ed. 1996), are extraordinary interruptions to the normal process of liti­ gation and ought to be limited carefully. An obvious way to limit the scope of such an extraordi­ nary interruption would be to read the §16 requirement that the stay have been denied “under section 3” as calling for a look-through to the provisions of §3, and to read §3 itself as offering a stay only to signatories of an arbitration agreement. It is perfectly true that in general a third­ party beneficiary can enforce a contract, but this is a weak premise for inferring an intent to allow third parties to obtain a §3 stay and take a §16 appeal. While it is horn­ book contract law that third parties may enforce contracts for their benefit as a matter of course, interlocutory ap­ peals are a matter of limited grace. Because it would therefore seem strange to assume that Congress meant to grant the right to appeal a §3 stay denial to anyone as peripheral to the core agreement as a nonsignatory, it follows that Congress probably intended to limit those able to seek a §3 stay. Asking whether a §3 movant is a signatory provides a bright-line rule with predictable results to aid courts in determining jurisdiction over §16 interlocutory appeals. And that rule has the further virtue of mitigating the risk of intentional delay by savvy parties who seek to frustrate litigation by gaming the system. Why not move for a §3 Cite as: 556 U. S. ____ (2009) 3 SOUTER, J., dissenting stay? If granted, arbitration will be mandated, and if denied, a lengthy appeal may wear down the opponent. The majority contends, ante, at 5, that “there are ways of minimizing the impact of abusive appeals.” Yes, but the sanctions suggested apply to the frivolous, not to the far­ fetched; and as the majority’s opinion concludes, such an attenuated claim of equitable estoppel as petitioners raise here falls well short of the sanctionable. Because petitioners were not parties to the written arbitration agreement, I would hold they could not move to stay the District Court proceedings under §3, with the consequence that the Court of Appeals would have no jurisdiction under §16 to entertain their appeal. I would accordingly affirm the judgment of the Sixth Circuit

Section 16 of the Federal Arbitration Act (FAA) author­ izes an interlocutory appeal from the denial of a motion under to stay a district court action pending arbitra­ tion. The question is whether it opens the door to such an appeal at the behest of one who has not signed a written arbitration agreement. Based on the longstanding con­ gressional policy limiting interlocutory appeals, I think the better reading of the statutory provisions disallows such an appeal, and I therefore respectfully dissent. Section 16(a) of the FAA provides that “[a]n appeal may be taken from an order refusing a stay of any ac­ tion under section 3 of this title.” 9 U.S. C. The Court says that any litigant who asks for and is denied a stay is entitled to an immediate appeal. Ante, at 3. The majority’s assumption is that “under section 3” is merely a labeling requirement, without substantive im­ port, but this fails to read in light of the “firm congres­ sional policy against interlocutory or ‘piecemeal’ appeals.” The right of appeal is “a creature of statute,” ibid., and Congress has granted the Federal Courts of Appeals juris­ diction to review “final decisions,” 28 U.S. C. “This insistence on finality and prohibition of piecemeal review 2 ARTHUR ANDERSEN LLP v. CARLISLE SOUTER, J., dissenting discourage undue litigiousness and leaden-footed admini­ stration of justice.” DiBella v. United States, 369 U.S. 121, 124 (1962). Congress has, however, “recognized the need of exceptions for interlocutory orders in certain types of proceedings where the damage of error unreviewed before the judgment is definitive and complete has been deemed greater than the disruption caused by inter­ mediate appeal.” Section 16 functions as one such exception, but departures from “the dominant rule in federal appellate practice,” 9 J. Moore, B. Ward, & J. Lucas, Moore’s Federal Practice ¶110.06 (2d ed. 1996), are extraordinary interruptions to the normal process of liti­ gation and ought to be limited carefully. An obvious way to limit the scope of such an extraordi­ nary interruption would be to read the requirement that the stay have been denied “under section 3” as calling for a look-through to the provisions of and to read itself as offering a stay only to signatories of an arbitration agreement. It is perfectly true that in general a third­ party beneficiary can enforce a contract, but this is a weak premise for inferring an intent to allow third parties to obtain a stay and take a appeal. While it is horn­ book contract law that third parties may enforce contracts for their benefit as a matter of course, interlocutory ap­ peals are a matter of limited grace. Because it would therefore seem strange to assume that Congress meant to grant the right to appeal a stay denial to anyone as peripheral to the core agreement as a nonsignatory, it follows that Congress probably intended to limit those able to seek a stay. Asking whether a movant is a signatory provides a bright-line rule with predictable results to aid courts in determining jurisdiction over interlocutory appeals. And that rule has the further virtue of mitigating the risk of intentional delay by savvy parties who seek to frustrate litigation by gaming the system. Why not move for a Cite as: 556 U. S. (2009) 3 SOUTER, J., dissenting stay? If granted, arbitration will be mandated, and if denied, a lengthy appeal may wear down the opponent. The majority contends, ante, at 5, that “there are ways of minimizing the impact of abusive appeals.” Yes, but the sanctions suggested apply to the frivolous, not to the far­ fetched; and as the majority’s opinion concludes, such an attenuated claim of equitable estoppel as petitioners raise here falls well short of the sanctionable. Because petitioners were not parties to the written arbitration agreement, I would hold they could not move to stay the District Court proceedings under with the consequence that the Court of Appeals would have no jurisdiction under to entertain their appeal. I would accordingly affirm the judgment of the Sixth Circuit

per_curiam

per_curiam

Adarand Constructors, Inc. v. Slater

2000-01-12

https://www.courtlistener.com/opinion/1855418/adarand-constructors-inc-v-slater/

https://www.courtlistener.com/api/rest/v3/clusters/1855418/

1999-020

I Congress has adopted a policy that favors contracting with small businesses owned and controlled by the socially and economically disadvantaged. See § 8(d)(1) of the Small Business Act, as added by § 7 of Pub. L. 87-305, 75 Stat. 667, and as amended, 15 U.S. C. § 637(d)(1) (1994 ed., Supp. IV). To effectuate that policy, the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA), Pub. L. 102-240, § 1003(b), 105 Stat. 1919, which is an appropriations measure for the Department of Transportation (DOT), seeks to direct 10 percent of the contracting funds expended on projects funded in whole or in part by the appropriated funds to transportation projects employing so-called disadvantaged business enterprises.[1] ISTEA § 1003(b)(1). *218 To qualify for that status, the small business must be certified as owned and controlled by socially and economically disadvantaged individuals. DOT does not itself conduct certifications, but relies on certifications from two main sources: the Small Business Administration, which certifies businesses for all types of federal procurement programs, and state highway agencies, which certify them for purposes of federally assisted highway projects. The federal regulations governing these certification programs, see 13 CFR pt. 124 (1999) (Small Business Administration); 64 Fed. Reg. 5096-5148 (1999) (to be codified in 49 CFR pt. 26) (DOT for state highway agencies), require that the certifying entity presume to be socially disadvantaged persons who are black, Hispanic, Asian Pacific, Subcontinent Asian, Native Americans, or members of other groups designated from time to time by the Small Business Administration. See 13 CFR § 124.103(b); 64 Fed. Reg. 5136 (§ 26.67). State highway agencies must in addition presume that women are socially disadvantaged. Ibid. Small businesses owned and controlled by persons who are not members of the preferred groups may also be certified, but only if they can demonstrate social disadvantage. See 13 CFR § 124.103(c); 64 Fed. Reg. 5136-5137 (§ 26.67(d)); id., at 5147-5148 (pt. 26, subpt. D, App. E). Third parties, as well as DOT, may challenge findings of social disadvantage. See 13 CFR § 124.1017(a); 64 Fed. Reg. 5142 (§ 26.87). II In 1989, DOT awarded the prime contract for a federal highway project in Colorado to Mountain Gravel & Construction Company. The contract included a Subcontractor Compensation Clause—which the Small Business Act requires all *219 federal agencies to include in their prime contracts, see 15 U.S. C. § 637(d)—rewarding the prime contractor for subcontracting with disadvantaged business enterprises, see § 637(d)(4)(E). Petitioner, whose principal is a white man, submitted the low bid on a portion of the project, but Mountain Gravel awarded the subcontract to a company that had previously been certified by the Colorado Department of Transportation (CDOT) as a disadvantaged business enterprise. Petitioner brought suit against various federal officials, alleging that the Subcontractor Compensation Clause, and in particular the race-based presumption that forms its foundation, violated petitioner's Fifth Amendment right to equal protection. The Tenth Circuit, applying the so-called intermediate scrutiny approved in some of our cases involving classifications on a basis other than race, see Mississippi Univ. for Women v. Hogan, 458 U.S. 718 (1982); Craig v. Boren, 429 U.S. 190 (1976), upheld the use of the clause and the presumption. Adarand Constructors, Inc. v. Peña, 16 F.3d 1537 (1994). Because DOT's use of race-based measures should have been subjected to strict scrutiny, we reversed and remanded for the application of that standard. Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 237-239 (1995) (Adarand I). On remand, the District Court for the District of Colorado held that the clause and the presumption failed strict scrutiny because they were not narrowly tailored. Adarand Constructors, Inc. v. Peña, 965 F. Supp. 1556 (1997) (Adarand II). Specifically, the court held the presumption that members of the enumerated racial groups are socially disadvantaged to be both overinclusive and underinclusive, because it includes members of those groups who are not disadvantaged and excludes members of other groups who are. Id., at 1580. The District Court enjoined DOT from *220 using the clause and its presumption.[2]Id., at 1584. Respondents appealed to the Tenth Circuit. Shortly thereafter, and while respondents' appeal was still pending, petitioner filed a second suit in the District Court, this time naming as defendants certain Colorado officials, and challenging (on the same grounds) the State's use of the federal guidelines in certifying disadvantaged business enterprises for federally assisted projects. Adarand Constructors, Inc. v. Romer, Civ. No. 97—K-1351 (June 26, 1997). Shortly after this suit was filed, however, Colorado altered its certification program in response to the District Court's decision in Adarand II. Specifically, the State did away with the presumption of social disadvantage for certain minorities and women, App. to Pet. for Cert. 109-111, and in its place substituted a requirement that all applicants certify on their own account that each of the firm's majority owners "has experienced social disadvantage based upon the effects of racial, ethnic or gender discrimination," id., at 110. Colorado requires no further showing of social disadvantage by any applicant. A few days after Colorado amended its certification procedure, the District Court held a hearing on petitioner's motion for a preliminary injunction in Romer. The District Court took judicial notice of its holding in Adarand II that the Federal Government had discriminated against petitioner's owner "by the application of unconstitutional rules and regulations." App. to Pet. for Cert. 136. As a result of that race-based discrimination, the District Court reasoned, petitioner likely was eligible for disadvantaged business status under Colorado's system for certifying businesses for federally assisted projects—the system at issue in Romer. App. to Pet. for Cert. 137. The District Court therefore denied *221 petitioner's request for a preliminary injunction. Id., at 138. Petitioner then requested and received disadvantaged business status from CDOT. Meanwhile, respondents' appeal from the District Court's decision in Adarand II was pending before the Tenth Circuit. Upon learning that CDOT had given petitioner disadvantaged business status, the Tenth Circuit held that the cause of action was moot, and vacated the District Court's judgment favorable to petitioner in Adarand II. 169 F.3d 1292, 1296-1297, 1299 (CA10 1999). Petitioner filed a petition for certiorari. III In dismissing the case as moot, the Tenth Circuit relied on the language of the Subcontractor Compensation Clause, which provides that "[a] small business concern will be considered a [disadvantaged business enterprise] after it has been certified as such by . . . any State's Department of Highways/Transportation." Id., at 1296. Because CDOT had certified petitioner as a disadvantaged business enterprise, the court reasoned, the language of the clause indicated that the Federal Government also had accepted petitioner's certification for purposes of federal projects. As a result, petitioner could no longer demonstrate "`an invasion of a legally protected interest' that is sufficiently `concrete and particularized' and `actual or imminent' " to establish standing. Arizonans for Official English v. Arizona, 520 U.S. 43, 64 (1997) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)). Because, the court continued, petitioner could not demonstrate such an invasion, its cause of action was moot. 169 F. 3d, at 1296-1297. In so holding, the Tenth Circuit "confused mootness with standing," Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., ante, at 189, and as a result placed the burden of proof on the wrong party. If this case is moot, it is because the Federal Government has accepted CDOT's *222 certification of petitioner as a disadvantaged business enterprise, and has thereby ceased its offending conduct. Voluntary cessation of challenged conduct moots a case, however, only if it is "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." United States v. Concentrated Phosphate Export Assn., Inc., 393 U.S. 199, 203 (1968) (emphasis added). And the "`heavy burden of persua[ding]' the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness. " Friends of Earth, ante, at 189 (emphasis added) (quoting Concentrated Phosphate Export Assn., supra, at 203). Because respondents cannot satisfy this burden, the Tenth Circuit's error was a crucial one. As common sense would suggest, and as the Tenth Circuit itself recognized, DOT accepts only "valid certification[s]" from state agencies. 169 F. 3d, at 1298. As respondents concede, however, see Brief in Opposition 13-14, n. 6, DOT has yet to approve—as it must—CDOT's procedure for certifying disadvantaged business enterprises, see 64 Fed. Reg. 5129 (1999) (49 CFR § 26.21(b)(1)) ("[The State] must submit a [disadvantaged business enterprise] program conforming to this part by August 31, 1999 to the concerned operating administration"). DOT has promulgated regulations outlining the procedure state highway agencies must follow in certifying firms as disadvantaged business enterprises. See 64 Fed. Reg. 5096— 5148 (pt. 26). As described earlier, those regulations require the agency to presume that "women, Black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans, Subcontinent Asian Americans, or other minorities found to be disadvantaged by the [Small Business Administration]" are socially disadvantaged. Id., at 5136 (§ 26.67(a)(1)). Before individuals not members of those groups may be certified, the state agency must make individual determinations as to disadvantage. See id., at 5136— 5137 (§ 26.67(d)) ("In such a proceeding, the applicant firm *223 has the burden of demonstrating to [the state highway agency], by a preponderance of the evidence, that the individuals who own and control it are socially and economically disadvantaged"); id., at 5147-5148 (pt. 26, subpt. D, App. E) (providing list of "elements" that highway agencies must consider in making individualized determinations of social disadvantage). CDOT's new procedure under which petitioner was certified applies no presumption in favor of minority groups, and accepts without investigation a firm's selfcertification of entitlement to disadvantaged business status. See App. to Pet. for Cert. 109-111. Given the material differences (not to say incompatibility) between that procedure and the requirements of the DOT regulations, it is not at all clear that CDOT's certification is a "valid certification," and hence not at all clear that the Subcontractor Compensation Clause requires its acceptance. Before the Tenth Circuit, respondents took pains to "expres[s] no opinion regarding the correctness of Colorado's determination that [petitioner] is entitled to [disadvantaged business] status." Motion by the Federal Appellants to Dismiss Appeal as Moot and to Vacate the District Court Judgment in No. 97-1304, p. 3, n. 2. Instead, they stated flatly that "in the event there is a third-party challenge to [petitioner's] certification as a [disadvantaged business enterprise] and the decision on the challenge is appealed to DOT, DOT may review the decision to determine whether the certification was proper." Id., at 3-4, n. 2. In addition, DOT itself has the power to require States to initiate proceedings to withdraw a firm's disadvantaged status if there is "reasonable cause to believe" that the firm "does not meet the eligibility criteria" set forth in the federal regulations. 64 Fed. Reg. 5142 (§ 26.87(c)(1)). Given the patent incompatibility of the certification with the federal regulations, it is far from clear that these possibilities will not become reality. Indeed, challenges to petitioner's disadvantaged business status seem quite probable now that the Tenth Circuit, by *224 vacating Adarand II, has eliminated the sole basis for petitioner's certification in the first place. The Tenth Circuit dismissed these possibilities as insufficiently particular and concrete to grant standing and therefore "too conjectural and speculative to avoid a finding of mootness." 169 F. 3d, at 1298 (internal quotation marks omitted). As we recently noted in Friends of the Earth, however, "[t]he plain lesson of [our precedents] is that there are circumstances in which the prospect that a defendant will engage in (or resume) harmful conduct may be too speculative to support standing, but not too speculative to overcome mootness." Ante, at 190. Because, under the circumstances of this case, it is impossible to conclude that respondents have borne their burden of establishing that it is "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur," ante, at 189, petitioner's cause of action remains alive. * * * It is no small matter to deprive a litigant of the rewards of its efforts, particularly in a case that has been litigated up to this Court and back down again. Such action on grounds of mootness would be justified only if it were absolutely clear that the litigant no longer had any need of the judicial protection that it sought. Because that is not the case here, the petition for writ of certiorari is granted, the judgment of the United States 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.

I Congress has adopted a policy that favors contracting with small businesses owned and controlled by the socially and economically disadvantaged. See 8(d)(1) of the Small Business Act, as added by 7 of Stat. 667, and as amended, 15 U.S. C. 637(d)(1) ( ed., Supp. IV). To effectuate that policy, the Intermodal Surface Transportation Efficiency Act of 1991 (ISTEA), Pub. L. 102-240, 1003(b), which is an appropriations measure for the Department of Transportation (DOT), seeks to direct 10 percent of the contracting funds expended on projects funded in whole or in part by the appropriated funds to transportation projects employing so-called disadvantaged business enterprises.[1] ISTEA 1003(b)(1). *218 To qualify for that status, the small business must be certified as owned and controlled by socially and economically disadvantaged individuals. DOT does not itself conduct certifications, but relies on certifications from two main sources: the Small Business Administration, which certifies businesses for all types of federal procurement programs, and state highway agencies, which certify them for purposes of federally assisted highway projects. The federal regulations governing these certification programs, see 13 CFR pt. 124 (Small Business Administration); -5148 (to be codified in 49 CFR pt. 26) (DOT for state highway agencies), require that the certifying entity presume to be socially disadvantaged persons who are black, Hispanic, Asian Pacific, Subcontinent Asian, Native Americans, or members of other groups designated from time to time by the Small Business Administration. See 13 CFR 124.103(b); ( 26.67). State highway agencies must in addition presume that women are socially disadvantaged. Small businesses owned and controlled by persons who are not members of the preferred groups may also be certified, but only if they can demonstrate social disadvantage. See 13 CFR 124.103(c); -5137 ( 26.67(d)); Third parties, as well as DOT, may challenge findings of social disadvantage. See 13 CFR 124.1017(a); ( 26.87). II In 1989, DOT awarded the prime contract for a federal highway project in Colorado to Mountain Gravel & Construction Company. The contract included a Subcontractor Compensation Clause—which the Small Business Act requires all *219 federal agencies to include in their prime contracts, see 15 U.S. C. 637(d)—rewarding the prime contractor for subcontracting with disadvantaged business enterprises, see 637(d)(4)(E). Petitioner, whose principal is a white man, submitted the low bid on a portion of the project, but Mountain Gravel awarded the subcontract to a company that had previously been certified by the Colorado Department of Transportation (CDOT) as a disadvantaged business enterprise. Petitioner brought suit against various federal officials, alleging that the Subcontractor Compensation Clause, and in particular the race-based presumption that forms its foundation, violated petitioner's Fifth Amendment right to equal protection. The Tenth Circuit, applying the so-called intermediate scrutiny approved in some of our cases involving classifications on a basis other than race, see Mississippi Univ. for ; upheld the use of the clause and the presumption. Adarand Constructors, Because DOT's use of race-based measures should have been subjected to strict scrutiny, we reversed and remanded for the application of that standard. Adarand Constructors, On remand, the District Court for the District of Colorado held that the clause and the presumption failed strict scrutiny because they were not narrowly tailored. Adarand Constructors, Specifically, the court held the presumption that members of the enumerated racial groups are socially disadvantaged to be both overinclusive and underinclusive, because it includes members of those groups who are not disadvantaged and excludes members of other groups who are. The District Court enjoined DOT from *220 using the clause and its presumption.[2] at 1584. Respondents appealed to the Tenth Circuit. Shortly thereafter, and while respondents' appeal was still pending, petitioner filed a second suit in the District Court, this time naming as defendants certain Colorado officials, and challenging (on the same grounds) the State's use of the federal guidelines in certifying disadvantaged business enterprises for federally assisted projects. Adarand Constructors, Inc. v. Romer, Civ. No. 97—K-1351 Shortly after this suit was filed, however, Colorado altered its certification program in response to the District Court's decision in Adarand II. Specifically, the State did away with the presumption of social disadvantage for certain minorities and women, App. to Pet. for Cert. 109-111, and in its place substituted a requirement that all applicants certify on their own account that each of the firm's majority owners "has experienced social disadvantage based upon the effects of racial, ethnic or gender discrimination," Colorado requires no further showing of social disadvantage by any applicant. A few days after Colorado amended its certification procedure, the District Court held a hearing on petitioner's motion for a preliminary injunction in Romer. The District Court took judicial notice of its holding in Adarand II that the Federal Government had discriminated against petitioner's owner "by the application of unconstitutional rules and regulations." App. to Pet. for Cert. 136. As a result of that race-based discrimination, the District Court reasoned, petitioner likely was eligible for disadvantaged business status under Colorado's system for certifying businesses for federally assisted projects—the system at issue in Romer. App. to Pet. for Cert. 137. The District Court therefore denied *221 petitioner's request for a preliminary injunction. Petitioner then requested and received disadvantaged business status from CDOT. Meanwhile, respondents' appeal from the District Court's decision in Adarand II was pending before the Tenth Circuit. Upon learning that CDOT had given petitioner disadvantaged business status, the Tenth Circuit held that the cause of action was moot, and vacated the District Court's judgment favorable to petitioner in Adarand II. Petitioner filed a petition for certiorari. III In dismissing the case as moot, the Tenth Circuit relied on the language of the Subcontractor Compensation Clause, which provides that "[a] small business concern will be considered a [disadvantaged business enterprise] after it has been certified as such by any State's Department of Highways/Transportation." Because CDOT had certified petitioner as a disadvantaged business enterprise, the court reasoned, the language of the clause indicated that the Federal Government also had accepted petitioner's certification for purposes of federal projects. As a result, petitioner could no longer demonstrate "`an invasion of a legally protected interest' that is sufficiently `concrete and particularized' and `actual or imminent' " to establish standing. Arizonans for Official Because, the court continued, petitioner could not demonstrate such an invasion, its cause of action was 169 F. 3d, -1297. In so holding, the Tenth Circuit "confused mootness with standing," Friends of Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., ante, at 189, and as a result placed the burden of proof on the wrong party. If this case is moot, it is because the Federal Government has accepted CDOT's *222 certification of petitioner as a disadvantaged business enterprise, and has thereby ceased its offending conduct. Voluntary cessation of challenged conduct moots a case, however, only if it is "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." United And the "`heavy burden of persua[ding]' the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness. " Friends of Earth, ante, at 189 (quoting Concentrated Phosphate Export at ). Because respondents cannot satisfy this burden, the Tenth Circuit's error was a crucial one. As common sense would suggest, and as the Tenth Circuit itself recognized, DOT accepts only "valid certification[s]" from state As respondents concede, however, see Brief in Opposition 13-14, n. 6, DOT has yet to approve—as it must—CDOT's procedure for certifying disadvantaged business enterprises, see Fed. Reg. 5129 (49 CFR 26.21(b)(1)) ("[The State] must submit a [disadvantaged business enterprise] program conforming to this part by August 31, to the concerned operating administration"). DOT has promulgated regulations outlining the procedure state highway agencies must follow in certifying firms as disadvantaged business enterprises. See — 5148 (pt. 26). As described earlier, those regulations require the agency to presume that "women, Black Americans, Hispanic Americans, Native Americans, Asian-Pacific Americans, Subcontinent Asian Americans, or other minorities found to be disadvantaged by the [Small Business Administration]" are socially disadvantaged. at 5136 ( 26.67(a)(1)). Before individuals not members of those groups may be certified, the state agency must make individual determinations as to disadvantage. See at 5136— 5137 ( 26.67(d)) ("In such a proceeding, the applicant firm *223 has the burden of demonstrating to [the state highway agency], by a preponderance of the evidence, that the individuals who own and control it are socially and economically disadvantaged"); (providing list of "elements" that highway agencies must consider in making individualized determinations of social disadvantage). CDOT's new procedure under which petitioner was certified applies no presumption in favor of minority groups, and accepts without investigation a firm's selfcertification of entitlement to disadvantaged business status. See App. to Pet. for Cert. 109-111. Given the material differences (not to say incompatibility) between that procedure and the requirements of the DOT regulations, it is not at all clear that CDOT's certification is a "valid certification," and hence not at all clear that the Subcontractor Compensation Clause requires its acceptance. Before the Tenth Circuit, respondents took pains to "expres[s] no opinion regarding the correctness of Colorado's determination that [petitioner] is entitled to [disadvantaged business] status." Motion by the Federal Appellants to Dismiss Appeal as Moot and to Vacate the District Court Judgment in No. 97-1304, p. 3, n. 2. Instead, they stated flatly that "in the event there is a third-party challenge to [petitioner's] certification as a [disadvantaged business enterprise] and the decision on the challenge is appealed to DOT, DOT may review the decision to determine whether the certification was proper." In addition, DOT itself has the power to require States to initiate proceedings to withdraw a firm's disadvantaged status if there is "reasonable cause to believe" that the firm "does not meet the eligibility criteria" set forth in the federal regulations. ( 26.87(c)(1)). Given the patent incompatibility of the certification with the federal regulations, it is far from clear that these possibilities will not become reality. Indeed, challenges to petitioner's disadvantaged business status seem quite probable now that the Tenth Circuit, by *224 vacating Adarand II, has eliminated the sole basis for petitioner's certification in the first place. The Tenth Circuit dismissed these possibilities as insufficiently particular and concrete to grant standing and therefore "too conjectural and speculative to avoid a finding of mootness." As we recently noted in Friends of the Earth, however, "[t]he plain lesson of [our precedents] is that there are circumstances in which the prospect that a defendant will engage in (or resume) harmful conduct may be too speculative to support standing, but not too speculative to overcome mootness." Ante, at 190. Because, under the circumstances of this case, it is impossible to conclude that respondents have borne their burden of establishing that it is "absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur," ante, at 189, petitioner's cause of action remains alive. * * * It is no small matter to deprive a litigant of the rewards of its efforts, particularly in a case that has been litigated up to this Court and back down again. Such action on grounds of mootness would be justified only if it were absolutely clear that the litigant no longer had any need of the judicial protection that it sought. Because that is not the case here, the petition for writ of certiorari is granted, the judgment of the United States 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 Rehnquist

majority

Tennessee Student Assistance Corporation v. Hood

2004-05-17

https://www.courtlistener.com/opinion/134741/tennessee-student-assistance-corporation-v-hood/

https://www.courtlistener.com/api/rest/v3/clusters/134741/

2003-057

Article I, § 8, cl. 4, of the Constitution provides that Congress shall have the power "[t]o establish . . . uniform Laws on the subject of Bankruptcies throughout the United States." We granted certiorari to determine whether this Clause grants Congress the authority to abrogate state sovereign immunity from private suits. Because we conclude that a proceeding initiated by a debtor to determine the dischargeability of a student loan debt is not a suit against the State for purposes of the Eleventh Amendment, we affirm the Court of Appeals' judgment, and we do not reach the question on which certiorari was granted. I Petitioner, Tennessee Student Assistance Corporation (TSAC), is a governmental corporation created by the Tennessee Legislature to administer student assistance programs. *444 Tenn. Code Ann. § 49-4-201 (2002). TSAC guarantees student loans made to residents of Tennessee and to nonresidents who are either enrolled in an eligible school in Tennessee or make loans through an approved Tennessee lender. § 49-4-203. Between July 1988 and February 1990, respondent, Pamela Hood, a resident of Tennessee, signed promissory notes for educational loans guaranteed by TSAC. In February 1999, Hood filed a "no asset" Chapter 7 bankruptcy petition in the United States Bankruptcy Court for the Western District of Tennessee; at the time of the filing, her student loans had an outstanding balance of $4,169.31. TSAC did not participate in the proceeding, but Sallie Mae Service, Inc. (Sallie Mae), submitted a proof of claim to the Bankruptcy Court, which it subsequently assigned to TSAC.[1] The Bankruptcy Court granted Hood a general discharge in June 1999. See 11 U.S. C. § 727(a). Hood did not list her student loans in the bankruptcy proceeding, and the general discharge did not cover them. See § 727(b) (providing that a discharge under § 727(a) discharges the debtor from all prepetition debts except as listed in § 523(a)); § 523(a)(8) (providing that student loans guaranteed by governmental units are not included in a general discharge order unless the bankruptcy court determines that excepting the debt from the order would impose an "undue hardship" on the debtor). In September 1999, Hood reopened her bankruptcy petition for the limited purpose of seeking a determination by the Bankruptcy Court that her student loans were dischargeable as an "undue hardship" pursuant to § 523(a)(8). As prescribed by the Federal Rules of Bankruptcy Procedure, Hood filed a complaint against the *445 United States of America, the Department of Education, and Sallie Mae, see Fed. Rules Bkrtcy. Proc. 7001(6) and 7003, and later filed an amended complaint in which she included TSAC and University Account Services as additional defendants and deleted Sallie Mae. The complaint and the amended complaint were served along with a summons on each of the named parties. See Rule 7004. In response, TSAC filed a motion to dismiss the complaint for lack of jurisdiction, asserting Eleventh Amendment sovereign immunity.[2] The Bankruptcy Court denied the motion, holding that 11 U.S. C. § 106(a) was a valid abrogation of TSAC's sovereign immunity. App. to Pet. for Cert. A-62. TSAC took an interlocutory appeal, see Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 147 (1993), and a unanimous Bankruptcy Appellate Panel of the Sixth Circuit affirmed, 262 B.R. 412 (2001). TSAC appealed the panel's decision to the United States Court of Appeals for the Sixth Circuit. That court affirmed, holding that the States ceded their immunity from private suits in bankruptcy in the Constitutional Convention, and therefore, the Bankruptcy Clause, U. S. Const., Art. I, § 8, cl. 4, provided Congress with the necessary authority to abrogate state sovereign immunity in 11 U.S. C. § 106(a). 319 F.3d 755, 767 (2003). One judge concurred in the judgment, concluding that TSAC waived its sovereign immunity when it accepted Sallie Mae's proof of claim.[3]Id., at 768. We granted certiorari, 539 U.S. 986 (2003), and now affirm the judgment of the Court of Appeals. Because we hold that a bankruptcy court's discharge of a student loan debt does not implicate a State's Eleventh Amendment immunity, we do not reach the broader question addressed by the Court of Appeals. *446 II By its terms, the Eleventh Amendment precludes suits "in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." For over a century, however, we have recognized that the States' sovereign immunity is not limited to the literal terms of the Eleventh Amendment. See Hans v. Louisiana, 134 U.S. 1 (1890). Although the text of the Amendment refers only to suits against a State by citizens of another State, we have repeatedly held that an unconsenting State also is immune from suits by its own citizens. See, e. g., id., at 15; Duhne v. New Jersey, 251 U.S. 311, 313 (1920); Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 51 (1944); Employees of Dept. of Public Health and Welfare of Mo. v. Department of Public Health and Welfare of Mo., 411 U.S. 279, 280 (1973); Edelman v. Jordan, 415 U.S. 651, 662-663 (1974); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 55 (1996). States, nonetheless, may still be bound by some judicial actions without their consent. In California v. Deep Sea Research, Inc., 523 U.S. 491 (1998), we held that the Eleventh Amendment does not bar federal jurisdiction over in rem admiralty actions when the State is not in possession of the property. In that case, a private corporation located a historic shipwreck, the S. S. Brother Jonathan, in California's territorial waters. The corporation filed an in rem action in federal court seeking rights to the wreck and its cargo. The State of California intervened, arguing that it possessed title to the wreck and that its sovereign immunity precluded the court from adjudicating its rights. While acknowledging that the Eleventh Amendment might constrain federal courts' admiralty jurisdiction in some instances, id., at 503 (citing Ex parte New York, 256 U.S. 490 (1921) (New York I); Ex parte New York, 256 U.S. 503 (1921) (New York II); Florida Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670 (1982)), we held that the States' sovereign immunity *447 did not prohibit in rem admiralty actions in which the State did not possess the res, 523 U.S., at 507-508 (citing e. g., The Davis, 10 Wall. 15 (1870); The Pesaro, 255 U.S. 216 (1921)). The discharge of a debt by a bankruptcy court is similarly an in rem proceeding. See Gardner v. New Jersey, 329 U.S. 565, 574 (1947); Straton v. New, 283 U.S. 318, 320-321 (1931); Hanover Nat. Bank v. Moyses, 186 U.S. 181, 192 (1902); New Lamp Chimney Co. v. Ansonia Brass & Copper Co., 91 U.S. 656, 662 (1876). Bankruptcy courts have exclusive jurisdiction over a debtor's property, wherever located, and over the estate. See 28 U.S. C. § 1334(e). In a typical voluntary bankruptcy proceeding under Chapter 7, the debtor files a petition for bankruptcy in which he lists his debts or his creditors, Fed. Rule Bkrtcy. Proc. 1007(a)(1); the petition constitutes an order for relief, 11 U.S. C. § 301. The court clerk notifies the debtor's creditors of the order for relief, see Rule 2002(l), and if a creditor wishes to participate in the debtor's assets, he files a proof of claim, Rule 3002(a); see 11 U.S. C. § 726. If a creditor chooses not to submit a proof of claim, once the debts are discharged, the creditor will be unable to collect on his unsecured loans. Rule 3002(a); see 11 U.S. C. § 726. The discharge order releases a debtor from personal liability with respect to any discharged debt by voiding any past or future judgments on the debt and by operating as an injunction to prohibit creditors from attempting to collect or to recover the debt. §§ 524(a)(1), (2); 3 W. Norton, Bankruptcy Law and Practice 2d § 48:1, p. 48-3 (1998) (hereinafter Norton). A bankruptcy court is able to provide the debtor a fresh start in this manner, despite the lack of participation of all of his creditors, because the court's jurisdiction is premised on the debtor and his estate, and not on the creditors. In re Collins, 173 F.3d 924, 929 (CA4 1999) ("A federal court's jurisdiction over the dischargeability of debt . . . derives not from jurisdiction over the state or other creditors, but rather *448 from jurisdiction over debtors and their estates" (internal quotation marks omitted)); see also Gardner, supra, at 572; In re Ellett, 254 F.3d 1135, 1141 (CA9 2001); Texas v. Walker, 142 F.3d 813, 822 (CA5 1998). A bankruptcy court's in rem jurisdiction permits it to "determin[e] all claims that anyone, whether named in the action or not, has to the property or thing in question. The proceeding is `one against the world.'" 16 J. Moore et al., Moore's Federal Practice § 108.70[1], p. 108-106 (3d ed. 2004). Because the court's jurisdiction is premised on the res, however, a nonparticipating creditor cannot be subjected to personal liability. See Freeman v. Alderson, 119 U.S. 185, 188-189 (1886) (citing Cooper v. Reynolds, 10 Wall. 308 (1870)). Under our longstanding precedent, States, whether or not they choose to participate in the proceeding, are bound by a bankruptcy court's discharge order no less than other creditors. In New York v. Irving Trust Co., 288 U.S. 329 (1933), we sustained an order of the Bankruptcy Court which barred the State of New York's tax claim because it was not filed within the time fixed for the filing of claims. We held that "[i]f a state desires to participate in the assets of a bankrupt, she must submit to the appropriate requirements." Id., at 333; see also Gardner, supra, at 574 (holding that a State waives its sovereign immunity by filing a proof of claim). And in Van Huffel v. Harkelrode, 284 U.S. 225, 228-229 (1931), we held that the Bankruptcy Court had the authority to sell a debtor's property "free and clear" of a State's tax lien. At least when the bankruptcy court's jurisdiction over the res is unquestioned, cf. United States v. Nordic Village, Inc., 503 U.S. 30 (1992), our cases indicate that the exercise of its in rem jurisdiction to discharge a debt does not infringe state sovereignty.[4] Cf. Hoffman v. Connecticut Dept. of Income *449 Maintenance, 492 U.S. 96, 102 (1989) (plurality opinion) (applying Eleventh Amendment analysis where a Bankruptcy Court sought to issue a money judgment against a nonconsenting State). TSAC concedes that States are generally bound by a bankruptcy court's discharge order, see Tr. of Oral Arg. 17, but argues that the particular process by which student loan debts are discharged unconstitutionally infringes its sovereignty. Student loans used to be presumptively discharged in a general discharge. But in 1976, Congress provided a significant benefit to the States by making it more difficult for debtors to discharge student loan debts guaranteed by States. Education Amendments of 1976, § 439A(a), 90 Stat. 2141 (codified at 20 U.S. C. § 1087-3 (1976 ed.), repealed by Pub. L. 95-598, § 317, 92 Stat. 2678). That benefit is currently governed by 11 U.S. C. § 523(a)(8), which provides that student loan debts guaranteed by governmental units are not included in a general discharge order unless excepting the debt from the order would impose an "undue hardship" on the debtor. See also § 727(b) (providing that a discharge under § 727(a) discharges the debtor from all prepetition debts except as listed in § 523(a)). *450 Section 523(a)(8) is "self-executing." Norton § 47:52, at 47-137 to 47-138; see also S. Rep. No. 95-989, p. 79 (1978). Unless the debtor affirmatively secures a hardship determination, the discharge order will not include a student loan debt. Norton § 47:52, at 47-137 to 47-138. Thus, the major difference between the discharge of a student loan debt and the discharge of most other debts is that governmental creditors, including States, that choose not to submit themselves to the court's jurisdiction might still receive some benefit: The debtor's personal liability on the loan may survive the discharge. It is this change that TSAC contends infringes state sovereignty. Tr. of Oral Arg. 15-16. By making a student loan debt presumptively nondischargeable and singling it out for an "individualized adjudication," id., at 17, TSAC argues that Congress has authorized a suit against a State. But TSAC misunderstands the fundamental nature of the proceeding. No matter how difficult Congress has decided to make the discharge of student loan debt, the bankruptcy court's jurisdiction is premised on the res, not on the persona; that States were granted the presumptive benefit of nondischargeability does not alter the court's underlying authority. A debtor does not seek monetary damages or any affirmative relief from a State by seeking to discharge a debt; nor does he subject an unwilling State to a coercive judicial process. He seeks only a discharge of his debts. Indeed, we have previously endorsed individualized determinations of States' interests within the federal courts' in rem jurisdiction. In Van Huffel, we affirmed the bankruptcy courts' power to sell property free from encumbrances, including States' liens, and approvingly noted that some courts had chosen specifically to discharge States' liens for taxes. 284 U.S., at 228; cf. Gardner, 329 U. S., at 572-574 (noting "that the reorganization court had jurisdiction over the proof and allowance of the tax claims and that the exercise of that power was not a suit against the State"). *451 Our decision in California v. Deep Sea Research, Inc., 523 U.S. 491 (1998), also involved an individualized in rem adjudication in which a State claimed an interest, as have other in rem admiralty cases involving sovereigns, e. g., The Davis, 10 Wall., at 19; The Siren, 7 Wall. 152, 159 (1869); The Pesaro, 255 U. S., at 219. Although both bankruptcy and admiralty are specialized areas of the law, we see no reason why the exercise of the federal courts' in rem bankruptcy jurisdiction is more threatening to state sovereignty than the exercise of their in rem admiralty jurisdiction. We find no authority, in fine, that suggests a bankruptcy court's exercise of its in rem jurisdiction to discharge a student loan debt would infringe state sovereignty in the manner suggested by TSAC. We thus hold that the undue hardship determination sought by Hood in this case is not a suit against a State for purposes of the Eleventh Amendment.[5] III Lastly, we deal with the procedure that was used in this case. Creditors generally are not entitled to personal service before a bankruptcy court may discharge a debt. Hanover Nat. Bank, 186 U. S., at 192. Because student loan debts are not automatically dischargeable, however, the Federal Rules of Bankruptcy Procedure provide creditors greater procedural protection. See Fed. Rules Bkrtcy. Proc. 7001(6), 7003, and 7004. The current Bankruptcy Rules require the debtor to file an "adversary proceeding" against the State in order to discharge his student loan debt. The *452 proceeding is considered part of the original bankruptcy case, see 10 Collier on Bankruptcy ¶ 7003.02 (rev. 15th ed. 2003), and still within the bankruptcy court's in rem jurisdiction as discussed above. But, as prescribed by the Rules, an "adversary proceeding" requires the service of a summons and a complaint. Rules 7001(6), 7003, and 7004. Because this "adversary proceeding" has some similarities to a traditional civil trial, JUSTICE THOMAS contends that the Bankruptcy Court cannot make an undue hardship determination without infringing TSAC's sovereignty under Federal Maritime Comm'n v. South Carolina Ports Authority, 535 U.S. 743 (2002). See post, at 457-460. In Federal Maritime Comm'n, we held that the Eleventh Amendment precluded a private party from haling an unconsenting State into a proceeding before the Federal Maritime Commission (FMC). We noted that we have applied a presumption since Hans v. Louisiana, 134 U.S. 1 (1890), "that the Constitution was not intended to `rais[e] up' any proceedings against the States that were `anomalous and unheard of when the Constitution was adopted.'" 535 U.S., at 755. Because agency adjudications were unheard of at the time of the founding, we had to determine whether the FMC proceeding was "the type of proceedin[g] from which the Framers would have thought the States possessed immunity when they agreed to enter the Union." Id., at 756. Noting the substantial similarities between a proceeding before the FMC and one before an Article III court, we concluded that the Hans presumption applied, see 535 U.S., at 756-763, and that the Eleventh Amendment therefore precluded private suits in such a forum, id., at 769. In this case, however, there is no need to engage in a comparative analysis to determine whether the adjudication would be an affront to States' sovereignty. As noted above, we have long held that the bankruptcy courts' exercise of in rem jurisdiction is not such an offense. Supra, at 448-451. Nor is there any dispute that, if the Bankruptcy Court had *453 to exercise personal jurisdiction over TSAC, such an adjudication would implicate the Eleventh Amendment. Our precedent has drawn a distinction between in rem and in personam jurisdiction, even when the underlying proceedings are, for the most part, identical. Thus, whether an in rem adjudication in a bankruptcy court is similar to civil litigation in a district court is irrelevant. If JUSTICE THOMAS' interpretation of Federal Maritime Comm'n were adopted, Deep Sea Research, Van Huffle, and Irving Trust, all of which involved proceedings resembling traditional civil adjudications, would likely have to be overruled. We are not willing to take such a step. The issuance of process, nonetheless, is normally an indignity to the sovereignty of a State because its purpose is to establish personal jurisdiction over the State. We noted in Seminole Tribe: "The Eleventh Amendment does not exist solely in order to prevent federal-court judgments that must be paid out of a State's treasury; it also serves to avoid the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties." 517 U.S., at 58 (citations and internal quotation marks omitted). Here, however, the Bankruptcy Court's in rem jurisdiction allows it to adjudicate the debtor's discharge claim without in personam jurisdiction over the State. See 4A C. Wright & A. Miller, Federal Practice and Procedure § 1070, pp. 280-281 (3d ed. 2002) (noting jurisdiction over the person is irrelevant if the court has jurisdiction over the property). Hood does not argue that the court should exercise personal jurisdiction; all she wants is a determination of the dischargeability of her debt. The text of § 523(a)(8) does not require a summons, and absent Rule 7001(6) a debtor could proceed by motion, see Rule 9014 ("[I]n a contested matter . . . not otherwise governed by these rules, relief shall be requested by motion"), which would raise no constitutional concern. Hood concedes that even if TSAC ignores the summons and chooses not to participate in the proceeding the *454 Bankruptcy Court cannot discharge her debt without making an undue hardship determination. Tr. of Oral Arg. 33-34. We see no reason why the service of a summons, which in this case is indistinguishable in practical effect from a motion, should be given dispositive weight. As we said in Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 270 (1997), "[t]he real interests served by the Eleventh Amendment are not to be sacrificed to elementary mechanics of captions and pleading." See New York I, 256 U. S., at 500 (a suit against a State "is to be determined not by the mere names of the titular parties but by the essential nature and effect of the proceeding, as it appears from the entire record"). To conclude that the issuance of a summons, which is required only by the Rules, precludes Hood from exercising her statutory right to an undue hardship determination would give the Rules an impermissible effect. 28 U.S. C. § 2075 ("[The Bankruptcy Rules] shall not abridge, enlarge, or modify any substantive right"). And there is no reason to take such a step. TSAC sought only to dismiss the complaint for lack of jurisdiction in the Bankruptcy Court. Motion to Dismiss Complaint for Lack of Jurisdiction in No. 99-0847 (Bkrtcy. Ct. WD Tenn.), pp. 1-2. Clearly dismissal of the complaint is not appropriate as the court has in rem jurisdiction over the matter, and the court here has not attempted to adjudicate any claims outside of that jurisdiction. The case before us is thus unlike an adversary proceeding by the bankruptcy trustee seeking to recover property in the hands of the State on the grounds that the transfer was a voidable preference. Even if we were to hold that Congress lacked the ability to abrogate state sovereign immunity under the Bankruptcy Clause, as TSAC urges us to do, the Bankruptcy Court would still have the authority to make the undue hardship determination sought by Hood. We therefore decline to decide whether a bankruptcy court's exercise of personal jurisdiction over a State would be valid under the Eleventh Amendment. See Liverpool, *455 New York & Philadelphia S. S. Co. v. Commissioners of Emigration, 113 U.S. 33, 39 (1885) ("[We are bound] never to anticipate a question of constitutional law in advance of the necessity of deciding it"). If the Bankruptcy Court on remand exceeds its in rem jurisdiction, TSAC, of course, will be free to challenge the court's authority. At this point, however, any such constitutional concern is merely hypothetical. The judgment of the United States Court of Appeals for the Sixth Circuit is affirmed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Article 8, cl. 4, of the Constitution provides that Congs shall have the power "[t]o establish uniform Laws on the subject of ruptcies throughout the United States." We granted certiorari to determine whether this Clause grants Congs the authority to abrogate state sovereign immunity from private suits. Because we conclude that a proceeding initiated by a debtor to determine the dischargeability of a student loan debt is not a suit against the State for purposes of the Eleventh Amendment, we affirm the Court of Appeals' judgment, and we do not reach the question on which certiorari was granted. Petitioner, Tennessee Student Assistance Corporation (TSAC), is a governmental corporation created by the Tennessee Legislature to administer student assistance programs. *444 Tenn. Code Ann. 49-4-201 TSAC guarantees student loans made to idents of Tennessee and to nonidents who are either enrolled in an eligible school in Tennessee or make loans through an approved Tennessee lender. 49-4-203. Between July 1988 and February 1990, pondent, Pamela Hood, a ident of Tennessee, signed promissory notes for educational loans guaranteed by TSAC. n February Hood filed a "no asset" Chapter 7 bankruptcy petition in the United States ruptcy Court for the Western District of Tennessee; at the time of the filing, her student loans had an outstanding balance of $4,169.31. TSAC did not participate in the proceeding, but Sallie Mae Service, nc. (Sallie Mae), submitted a proof of claim to the ruptcy Court, which it subsequently assigned to TSAC.[1] The ruptcy Court granted Hood a general discharge in June See 11 U.S. C. 727(a). Hood did not list her student loans in the bankruptcy proceeding, and the general discharge did not cover them. See 727(b) (providing that a discharge under 727(a) discharges the debtor from all prepetition debts except as listed in 523(a)); 523(a)(8) (providing that student loans guaranteed by governmental units are not included in a general discharge order unless the bankruptcy court determines that excepting the debt from the order would impose an "undue hardship" on the debtor). n September Hood reopened her bankruptcy petition for the limited purpose of seeking a determination by the ruptcy Court that her student loans were dischargeable as an "undue hardship" pursuant to 523(a)(8). As pcribed by the Federal Rules of ruptcy Procedure, Hood filed a complaint against the *445 United States of America, the Department of Education, and Sallie Mae, see Fed. Rules Bkrtcy. Proc. 7001(6) and 7003, and later filed an amended complaint in which she included TSAC and University Account Services as additional defendants and deleted Sallie Mae. The complaint and the amended complaint were served along with a summons on each of the named parties. See Rule 7004. n ponse, TSAC filed a motion to dismiss the complaint for lack of jurisdiction, asserting Eleventh Amendment sovereign immunity.[2] The ruptcy Court denied the motion, holding that 11 U.S. C. 106(a) was a valid abrogation of TSAC's sovereign immunity. App. to Pet. for Cert. A-62. TSAC took an interlocutory appeal, see Puerto Rico Aqueduct and Sewer and a unanimous ruptcy Appellate Panel of the Sixth Circuit affirmed, TSAC appealed the panel's decision to the United States Court of Appeals for the Sixth Circuit. That court affirmed, holding that the States ceded their immunity from private suits in bankruptcy in the Constitutional Convention, and therefore, the ruptcy Clause, U. S. Const., Art. 8, cl. 4, provided Congs with the necessary authority to abrogate state sovereign immunity in 11 U.S. C. 106(a). One judge concurred in the judgment, concluding that TSAC waived its sovereign immunity when it accepted Sallie Mae's proof of claim.[3] at 768. We granted certiorari, and now affirm the judgment of the Court of Appeals. Because we hold that a bankruptcy court's discharge of a student loan debt does not implicate a State's Eleventh Amendment immunity, we do not reach the broader question addsed by the Court of Appeals. *446 By its terms, the Eleventh Amendment precludes suits "in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State." For over a century, however, we have recognized that the States' sovereign immunity is not limited to the literal terms of the Eleventh Amendment. See Although the text of the Amendment refers only to suits against a State by citizens of another State, we have repeatedly held that an unconsenting State also is immune from suits by its own citizens. See, e. g., ; ; Great Northern Life ns. ; Employees of Dept. of Public Health and Welfare of ; 415 U.S. 6, ; Seminole Tribe of 7 U.S. 44, States, nonetheless, may still be bound by some judicial actions without their consent. n we held that the Eleventh Amendment does not bar federal jurisdiction over in rem admiralty actions when the State is not in possession of the property. n that case, a private corporation located a historic shipwreck, the S. S. Brother Jonathan, in California's territorial waters. The corporation filed an in rem action in federal court seeking rights to the wreck and its cargo. The State of California intervened, arguing that it possessed title to the wreck and that its sovereign immunity precluded the court from adjudicating its rights. While acknowledging that the Eleventh Amendment might constrain federal courts' admiralty jurisdiction in some instances, at 503 ; Ex parte New York, ; Florida Dept. of ), we held that the States' sovereign immunity *447 did not prohibit in rem admiralty actions in which the State did not possess the -508 ; The 2 U.S. 216 ). The discharge of a debt by a bankruptcy court is similarly an in rem proceeding. See ; ; Hanover Nat. ; New Lamp Chimney ruptcy courts have exclusive jurisdiction over a debtor's property, wherever located, and over the estate. See 28 U.S. C. 1334(e). n a typical voluntary bankruptcy proceeding under Chapter 7, the debtor files a petition for bankruptcy in which he lists his debts or his creditors, Fed. Rule Bkrtcy. Proc. 1007(a)(1); the petition constitutes an order for relief, 11 U.S. C. 301. The court clerk notifies the debtor's creditors of the order for relief, see Rule 2002(l), and if a creditor wishes to participate in the debtor's assets, he files a proof of claim, Rule 3002(a); see 11 U.S. C. 726. f a creditor chooses not to submit a proof of claim, once the debts are discharged, the creditor will be unable to collect on his unsecured loans. Rule 3002(a); see 11 U.S. C. 726. The discharge order releases a debtor from personal liability with pect to any discharged debt by voiding any past or future judgments on the debt and by operating as an injunction to prohibit creditors from attempting to collect or to recover the debt. 524(a)(1), (2); 3 W. Norton, ruptcy Law and Practice 2d 48:1, p. 48-3 (hereinafter Norton). A bankruptcy court is able to provide the debtor a fh start in this manner, despite the lack of participation of all of his creditors, because the court's jurisdiction is premised on the debtor and his estate, and not on the creditors. n re Collins, ; see also ; n re Ellett, ; A bankruptcy court's in rem jurisdiction permits it to "determin[e] all claims that anyone, whether named in the action or not, has to the property or thing in question. The proceeding is `one against the world.'" 16 J. Moore et al., Moore's Federal Practice 108.70[1], p. 108-106 (3d ed. 2004). Because the court's jurisdiction is premised on the however, a nonparticipating creditor cannot be subjected to personal liability. See ). Under our longstanding precedent, States, whether or not they choose to participate in the proceeding, are bound by a bankruptcy court's discharge order no less than other creditors. n New we sustained an order of the ruptcy Court which barred the State of New York's tax claim because it was not filed within the time fixed for the filing of claims. We held that "[i]f a state desi to participate in the assets of a bankrupt, she must submit to the appropriate requirements." ; see also at And in Van we held that the ruptcy Court had the authority to sell a debtor's property "free and clear" of a State's tax lien. At least when the bankruptcy court's jurisdiction over the is unquestioned, cf. United our cases indicate that the exercise of its in rem jurisdiction to discharge a debt does not infringe state sovereignty.[4] Cf. (applying Eleventh Amendment analysis where a ruptcy Court sought to issue a money judgment against a nonconsenting State). TSAC concedes that States are generally bound by a bankruptcy court's discharge order, see Tr. of Oral Arg. 17, but argues that the particular process by which student loan debts are discharged unconstitutionally infringes its sovereignty. Student loans used to be pumptively discharged in a general discharge. But in 1976, Congs provided a significant benefit to the States by making it more difficult for debtors to discharge student loan debts guaranteed by States. Education Amendments of 1976, 4A(a), (codified at 20 U.S. C. 1087-3 (1976 ed.), repealed by Pub. L. 95-598, 317, ). That benefit is currently governed by 11 U.S. C. 523(a)(8), which provides that student loan debts guaranteed by governmental units are not included in a general discharge order unless excepting the debt from the order would impose an "undue hardship" on the debtor. See also 727(b) (providing that a discharge under 727(a) discharges the debtor from all prepetition debts except as listed in 523(a)). *450 Section 523(a)(8) is "self-executing." Norton 47:52, at 47-137 to 47-138; see also S. Rep. No. 95-989, p. 79 (1978). Unless the debtor affirmatively secu a hardship determination, the discharge order will not include a student loan debt. Norton 47:52, at 47-137 to 47-138. Thus, the major difference between the discharge of a student loan debt and the discharge of most other debts is that governmental creditors, including States, that choose not to submit themselves to the court's jurisdiction might still receive some benefit: The debtor's personal liability on the loan may survive the discharge. t is this change that TSAC contends infringes state sovereignty. Tr. of Oral Arg. 15-16. By making a student loan debt pumptively nondischargeable and singling it out for an "individualized adjudication," TSAC argues that Congs has authorized a suit against a State. But TSAC misunderstands the fundamental nature of the proceeding. No matter how difficult Congs has decided to make the discharge of student loan debt, the bankruptcy court's jurisdiction is premised on the not on the persona; that States were granted the pumptive benefit of nondischargeability does not alter the court's underlying authority. A debtor does not seek monetary damages or any affirmative relief from a State by seeking to discharge a debt; nor does he subject an unwilling State to a coercive judicial process. He seeks only a discharge of his debts. ndeed, we have previously endorsed individualized determinations of States' intets within the federal courts' in rem jurisdiction. n Van Huffel, we affirmed the bankruptcy courts' power to sell property free from encumbrances, including States' liens, and approvingly noted that some courts had chosen specifically to discharge States' liens for ; cf. 329 U. S., - *4 Our decision in also involved an individualized in rem adjudication in which a State claimed an intet, as have other in rem admiralty cases involving sovereigns, e. g., The ; The Siren, ; The 2 U. S., at 219. Although both bankruptcy and admiralty are specialized areas of the law, we see no reason why the exercise of the federal courts' in rem bankruptcy jurisdiction is more threatening to state sovereignty than the exercise of their in rem admiralty jurisdiction. We find no authority, in fine, that suggests a bankruptcy court's exercise of its in rem jurisdiction to discharge a student loan debt would infringe state sovereignty in the manner suggested by TSAC. We thus hold that the undue hardship determination sought by Hood in this case is not a suit against a State for purposes of the Eleventh Amendment.[5] Lastly, we deal with the procedure that was used in this case. Creditors generally are not entitled to personal service before a bankruptcy court may discharge a debt. Hanover Nat. 186 U. S., at Because student loan debts are not automatically dischargeable, however, the Federal Rules of ruptcy Procedure provide creditors greater procedural protection. See Fed. Rules Bkrtcy. Proc. 7001(6), 7003, and 7004. The current ruptcy Rules require the debtor to file an "adversary proceeding" against the State in order to discharge his student loan debt. The *452 proceeding is considered part of the original bankruptcy case, see 10 Collier on ruptcy ¶ 7003.02 and still within the bankruptcy court's in rem jurisdiction as discussed above. But, as pcribed by the Rules, an "adversary proceeding" requi the service of a summons and a complaint. Rules 7001(6), 7003, and 7004. Because this "adversary proceeding" has some similarities to a traditional civil trial, JUSTCE THOMAS contends that the ruptcy Court cannot make an undue hardship determination without infringing TSAC's sovereignty under Federal Maritime See post, at 457-460. n Federal Maritime Comm'n, we held that the Eleventh Amendment precluded a private party from haling an unconsenting State into a proceeding before the Federal Maritime Commission (FMC). We noted that we have applied a pumption since "that the Constitution was not intended to `rais[e] up' any proceedings against the States that were `anomalous and unheard of when the Constitution was adopted.'" 535 U.S., at 7. Because agency adjudications were unheard of at the time of the founding, we had to determine whether the FMC proceeding was "the type of proceedin[g] from which the Framers would have thought the States possessed immunity when they agreed to enter the Union." Noting the substantial similarities between a proceeding before the FMC and one before an Article court, we concluded that the Hans pumption applied, see 535 U.S., -763, and that the Eleventh Amendment therefore precluded private suits in such a forum, n this case, however, there is no need to engage in a comparative analysis to determine whether the adjudication would be an affront to States' sovereignty. As noted above, we have long held that the bankruptcy courts' exercise of in rem jurisdiction is not such an at 448-4. Nor is there any dispute that, if the ruptcy Court had *453 to exercise personal jurisdiction over TSAC, such an adjudication would implicate the Eleventh Amendment. Our precedent has drawn a distinction between in rem and in personam jurisdiction, even when the underlying proceedings are, for the most part, identical. Thus, whether an in rem adjudication in a bankruptcy court is similar to civil litigation in a district court is irrelevant. f JUSTCE THOMAS' interpretation of Federal Maritime Comm'n were adopted, Deep Sea Research, Van Huffle, and rving Trust, all of which involved proceedings embling traditional civil adjudications, would likely have to be overruled. We are not willing to take such a step. The issuance of process, nonetheless, is normally an indignity to the sovereignty of a State because its purpose is to establish personal jurisdiction over the State. We noted in Seminole Tribe: "The Eleventh Amendment does not exist solely in order to prevent federal-court judgments that must be paid out of a State's treasury; it also serves to avoid the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties." 7 U.S., at 58 Here, however, the ruptcy Court's in rem jurisdiction allows it to adjudicate the debtor's discharge claim without in personam jurisdiction over the State. See 4A C. Wright & A. Miller, Federal Practice and Procedure 1070, pp. -281 (noting jurisdiction over the person is irrelevant if the court has jurisdiction over the property). Hood does not argue that the court should exercise personal jurisdiction; all she wants is a determination of the dischargeability of her debt. The text of 523(a)(8) does not require a summons, and absent Rule 7001(6) a debtor could proceed by motion, see Rule 9014 ("[]n a contested matter not otherwise governed by these rules, relief shall be requested by motion"), which would raise no constitutional concern. Hood concedes that even if TSAC igno the summons and chooses not to participate in the proceeding the *454 ruptcy Court cannot discharge her debt without making an undue hardship determination. Tr. of Oral Arg. 33-34. We see no reason why the service of a summons, which in this case is indistinguishable in practical effect from a motion, should be given dispositive weight. As we said in "[t]he real intets served by the Eleventh Amendment are not to be sacrificed to elementary mechanics of captions and pleading." See New York To conclude that the issuance of a summons, which is required only by the Rules, precludes Hood from exercising her statutory right to an undue hardship determination would give the Rules an impermissible effect. 28 U.S. C. 2075 ("[The ruptcy Rules] shall not abridge, enlarge, or modify any substantive right"). And there is no reason to take such a step. TSAC sought only to dismiss the complaint for lack of jurisdiction in the ruptcy Court. Motion to Dismiss Complaint for Lack of Jurisdiction in No. 99-0847 (Bkrtcy. Ct. WD Tenn.), pp. 1-2. Clearly dismissal of the complaint is not appropriate as the court has in rem jurisdiction over the matter, and the court here has not attempted to adjudicate any claims outside of that jurisdiction. The case before us is thus unlike an adversary proceeding by the bankruptcy trustee seeking to recover property in the hands of the State on the grounds that the transfer was a voidable preference. Even if we were to hold that Congs lacked the ability to abrogate state sovereign immunity under the ruptcy Clause, as TSAC urges us to do, the ruptcy Court would still have the authority to make the undue hardship determination sought by Hood. We therefore decline to decide whether a bankruptcy court's exercise of personal jurisdiction over a State would be valid under the Eleventh Amendment. See Liverpool, *4 New York & Philadelphia S. S. f the ruptcy Court on remand exceeds its in rem jurisdiction, TSAC, of course, will be free to challenge the court's authority. At this point, however, any such constitutional concern is merely hypothetical. The judgment of the United States Court of Appeals for the Sixth Circuit is affirmed, and the case is remanded for further proceedings consistent with this opinion. t is so ordered.

Justice Souter

concurring

Tennessee Student Assistance Corporation v. Hood

2004-05-17

https://www.courtlistener.com/opinion/134741/tennessee-student-assistance-corporation-v-hood/

https://www.courtlistener.com/api/rest/v3/clusters/134741/

2003-057

I join in the Court's opinion, save for any implicit approval of the holding in Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996).

I join in the Court's opinion, save for any implicit approval of the holding in Seminole Tribe of

Justice Thomas

dissenting

Tennessee Student Assistance Corporation v. Hood

2004-05-17

https://www.courtlistener.com/opinion/134741/tennessee-student-assistance-corporation-v-hood/

https://www.courtlistener.com/api/rest/v3/clusters/134741/

2003-057

We granted certiorari in this case to decide whether Congress has the authority to abrogate state sovereign immunity under the Bankruptcy Clause. 539 U.S. 986 (2003). Instead of answering this question, the Court addresses a more difficult one regarding the extent to which a bankruptcy court's exercise of its in rem jurisdiction could offend the sovereignty of a creditor-State. I recognize that, as the Court concludes today, the in rem nature of bankruptcy proceedings might affect the ability of a debtor to obtain, by motion, a bankruptcy court determination that affects a creditor-State's rights, but I would not reach this difficult question here. Even if the Bankruptcy Court could have exercised its in rem jurisdiction to make an undue hardship determination by motion, I cannot ignore the fact that the determination in this case was sought pursuant to an adversary proceeding. Under Federal Maritime Comm'n v. *456 South Carolina Ports Authority, 535 U.S. 743 (2002), the adversary proceeding here clearly constitutes a suit against the State for sovereign immunity purposes. I would thus reach the easier question presented and conclude that Congress lacks authority to abrogate state sovereign immunity under the Bankruptcy Clause. I The Court avoids addressing respondent's principal argument — which was the basis for the Court of Appeals' decision and which this Court granted certiorari in order to address — namely, that Congress possesses the power under the Bankruptcy Clause to abrogate a State's sovereign immunity from suit. Instead, the Court affirms the judgment of the Court of Appeals based on respondent's alternative argument, ante, at 445, that the Bankruptcy Court's decision was "an appropriate exercise of [its] in rem jurisdiction," Brief for Respondent 35. Although respondent advanced this argument in the proceedings before the Bankruptcy Appellate Panel of the Sixth Circuit, Brief for Appellee in No. 00-8062, p. 8, she declined to do so in the Court of Appeals. Indeed, before that court, respondent relied entirely on Congress' ability to abrogate state sovereign immunity under the Bankruptcy Clause rather than on any in rem theory because, under her reading of Missouri v. Fiske, 290 U.S. 18 (1933), "there is no in rem exception to a state's Eleventh Amendment immunity" in bankruptcy. Brief for Appellee in No. 01-5769 (CA6), p. 24. Furthermore, respondent did not raise the in rem argument in her brief in opposition before this Court. Under this Court's Rule 15.2, we may deem this argument waived. Caterpillar Inc. v. Lewis, 519 U.S. 61, 75, n. 13 (1996). And, we should do so here both because the argument is irrelevant to this case, and because the in rem question is both complex and uncertain, see Baldwin v. Reese, ante, p. 27. *457 A In Federal Maritime Comm'n, South Carolina Maritime Services, Inc. (SCMS), filed a complaint with the Federal Maritime Commission (FMC), an independent agency, alleging that a state-run port had violated the Shipping Act of 1984, 46 U.S. C. App. § 1701 et seq. We assumed without deciding that the FMC does not exercise "judicial power," 535 U.S., at 754, and nonetheless held that state sovereign immunity barred the adjudication of SCMS' complaint. Id., at 769. Federal Maritime Comm'n turned on the "overwhelming" similarities between FMC proceedings and civil litigation in federal courts. Id., at 759. For example, FMC's rules governing pleadings and discovery are very similar to the analogous Federal Rules of Civil Procedure. Id., at 757-758. Moreover, we noted that "the role of the [administrative law judge], the impartial officer designated to hear a case, is similar to that of an Article III judge." Id., at 758 (footnote and citation omitted). Based on these similarities, we held that, for purposes of state sovereign immunity, the adjudication before the FMC was indistinguishable from an adjudication in an Article III tribunal. See id., at 760-761. Thus, Federal Maritime Comm'n recognized that if the Framers would have found it an "impermissible affront to a State's dignity to be required to answer the complaints of private parties in federal courts," the Framers would have found it equally impermissible to compel States to do so simply because the adjudication takes place in an Article I rather than an Article III court. Ibid. Although the Court ignores Federal Maritime Comm'n altogether, its reasoning applies to this case. The similarities between adversary proceedings in bankruptcy and federal civil litigation are striking. Indeed, the Federal Rules of Civil Procedure govern adversary proceedings in substantial part. The proceedings are commenced by the filing of a complaint, Fed. Rule Bkrtcy. Proc. 7003; process is served, *458 Rule 7005; the opposing party is required to file an answer, Rule 7007; and the opposing party can file counterclaims against the movant, Rule 7013. Federal Rule of Civil Procedure 8 applies to the parties' pleadings. Fed. Rule Bkrtcy. Proc. 7008. Even the form of the parties' pleadings must comply with the federal rules for civil litigation. Rule 7010. "Likewise, discovery in [adversary proceedings] largely mirrors discovery in federal civil litigation." Federal Maritime Comm'n, supra, at 758. See Fed. Rules Bkrtcy. Proc. 7026-7037 (applying Fed. Rules Civ. Proc. 26-37 to adversary proceedings). And, when a party fails to answer or appear in an adversary proceeding, the Federal Rule governing default judgments applies. Fed. Rule Bkrtcy. Proc. 7055 (adopting Fed. Rule Civ. Proc. 55). In spite of these similarities, the Court concludes that, because the bankruptcy court's jurisdiction is premised on the res, the issuance of process in this case, as opposed to all others, does not subject an unwilling State to a coercive judicial process. Ante, at 452. The Court also views the adversary proceeding in this case differently than a typical adversary proceeding because, absent Federal Rule of Bankruptcy Procedure 7001(6), the Court concludes that a debtor could obtain an undue hardship determination by motion consistent with a bankruptcy court's in rem jurisdiction and consistent with the Constitution. See ante, at 453. Critically, however, the Court fails to explain why, simply because it asserts that this determination could have been made by motion, the adversary proceeding utilized in this case is somehow less offensive to state sovereignty. After all, "[t]he very object and purpose of the 11th Amendment [is] to prevent the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties." In re Ayers, 123 U.S. 443, 505 (1887); Federal Maritime Comm'n, supra, at 760; Alden v. Maine, 527 U.S. 706, 748 (1999); Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 58 (1996). The fact that an alternative proceeding exists, *459 the use of which might not be offensive to state sovereignty, is irrelevant to whether the particular proceeding actually used subjects a particular State to the indignities of coercive process. Indeed, the dissent in Federal Maritime Comm'n, much like the Court today, focused on the fact that the FMC was not required by statute to evaluate complaints through agency adjudication, 535 U.S., at 774-776 (opinion of BREYER, J.), and could have opted to evaluate complaints in some other manner. But this fact had no bearing on our decision in that case, nor should it control here. I simply cannot ignore the fact that respondent filed a complaint in the Bankruptcy Court "pray[ing] that proper process issue and that upon a hearing upon the merits that [the court] issue a judgment for [respondent] and against [petitioner] allowing [respondent's] debt to be discharged." Complaint for Hardship Discharge in No. 99-22606-K, Adversary No. 99-0847 (Bkrtcy. Ct. WD Tenn.), p. 1. More importantly, although the adversary proceeding in this case does not require the State to "defend itself" against petitioner in the ordinary sense, the effect is the same, whether done by adversary proceeding or by motion, and whether the proceeding is in personam or in rem. In order to preserve its rights, the State is compelled either to subject itself to the Bankruptcy Court's jurisdiction or to forfeit its rights. And, whatever the nature of the Bankruptcy Court's jurisdiction, it maintains at least as much control over nonconsenting States as the FMC, which lacks the power to enforce its own orders. Federal Maritime Comm'n rejected the view that the FMC's lack of enforcement power means that parties are not coerced to participate in its proceedings because the effect is the same — a State must submit to the adjudication or compromise its ability to defend itself in later proceedings. 535 U.S., at 761-764. Here, if the State does not oppose the debtor's claim of undue hardship, the Bankruptcy Court is authorized to enter a default judgment without making an undue hardship determination. *460 See Fed. Rules Bkrtcy. Proc. 7055, 9014 (adopting Fed. Rule Civ. Proc. 55 in both adversary proceedings and in contested matters governed by motion). The Court apparently concludes otherwise, but, tellingly, its only support for that questionable proposition is a statement made at oral argument. See ante, at 453-454. As I explain in Part I-B, infra, I do not contest the assertion that in bankruptcy, like admiralty, there might be a limited in rem exception to state sovereign immunity from suit. Nor do I necessarily reject the argument that this proceeding could have been resolved by motion without offending the dignity of the State. However, because this case did not proceed by motion, I cannot resolve the merits based solely upon what might have, but did not, occur. I would therefore hold that the adversary proceeding in this case constituted a suit against the State for sovereign immunity purposes. B The difficulty and complexity of the question of the scope of the Bankruptcy Court's in rem jurisdiction as it relates to a State's interests is a further reason that the Court should not address the question here without complete briefing and full consideration by the Court of Appeals. Relying on this Court's recent recognition of a limited in rem exception to state sovereign immunity in certain admiralty actions, see California v. Deep Sea Research, Inc., 523 U.S. 491 (1998), the Court recognizes that "States . . . may still be bound by some judicial actions without their consent," ante, at 446. The Court then acknowledges the undisputed fact that bankruptcy discharge proceedings are in rem proceedings. Ante, at 447. These facts, however, standing alone, do not compel the conclusion that the in rem exception should extend to this case. Deep Sea Research, supra, does not make clear the extent of the in rem exception in admiralty, much less its potential application in bankruptcy. The Court's recognition of an in *461 rem exception to state sovereign immunity in admiralty actions was informed, in part, by Justice Story's understanding of the difference between admiralty actions and regular civil litigation. Justice Story doubted whether the Eleventh Amendment extended to admiralty and maritime suits at all because, in admiralty, "the jurisdiction of the [federal] court is founded upon the possession of the thing; and if the State should interpose a claim for the property, it does not act merely in the character of a defendant, but as an actor." 2 Commentaries on the Constitution of the United States § 1689, p. 491 (5th ed. 1891). Justice Story supported this view by contrasting suits in law or equity with suits in admiralty, which received a separate grant of jurisdiction under Article III. Id., at 491-492. The Court, however, has since adopted a more narrow understanding of the in rem maritime exception. See Ex parte New York, 256 U.S. 490, 497 (1921) ("Nor is the admiralty and maritime jurisdiction exempt from the operation of the rule [that a State may not be sued without its consent]"). Thus, our holding in Deep Sea Research was limited to actions where the res is not within the State's possession. 523 U.S., at 507-508. Whatever the scope of the in rem exception in admiralty, the Court's cases reveal no clear principle to govern which, if any, bankruptcy suits are exempt from the Eleventh Amendment's bar. In Fiske, 290 U. S., at 28, the Court stated in no uncertain terms that "[t]he fact that a suit in a federal court is in rem, or quasi in rem, furnishes no ground for the issue of process against a non-consenting State." The Court contends that Fiske supports its argument because there the Court "noted the State might still be bound by the federal court's adjudication even if an injunction could not issue." Ante, at 449, n. 4. But the Court in Fiske also suggested that the State might not be bound by the federal court's adjudication — a more weighty proposition given the circumstances of the case. Fiske, in part, involved the validity of a federal-court decree entered in 1927, which determined *462 that Sophie Franz had only a life interest in certain shares of stock previously held by her deceased husband. When Franz died in 1930, Franz's executor did not inventory the shares because the federal-court decree declared Franz to have only a life interest in them. The dispute arose because the State sought to inventory those shares as assets of Franz's estate so that it could collect inheritance taxes on those shares. Although Fiske did not decide whether the 1927 federal decree was binding on the State, 290 U.S., at 29, the mere suggestion that the State might not be bound by the decree because it was not a party to an in rem proceeding in which it had no interest, see ibid., at least leaves in doubt the extent of any in rem exception in bankruptcy. Our more recent decision in United States v. Nordic Village, Inc., 503 U.S. 30 (1992), casts some doubt upon the Court's characterization of any in rem exception in bankruptcy. Nordic Village explicitly recognized that "we have never applied an in rem exception to the sovereign-immunity bar against monetary recovery, and have suggested that no such exception exists." Id., at 38. Although Nordic Village involved the sovereign immunity of the Federal Government, it also supports the argument that no in rem exception exists for other types of relief against a State. Nordic Village interpreted 11 U.S. C. § 106(c) to waive claims for declaratory and injunctive, though not monetary, relief against the Government. 503 U.S., at 34-37. We noted that this interpretation did not render § 106(c) irrelevant because a waiver of immunity with respect to claims for declaratory and injunctive relief would "perform a significant function" by "permit[ing] a bankruptcy court to determine the amount and dischargeability of an estate's liability to the Government . . . whether or not the Government filed a proof of claim." Id., at 36. Our interpretation of § 106(c) to waive liability only for declaratory and injunctive relief strongly suggests that such a waiver is necessary — i. e., that without the waiver, despite the bankruptcy court's in rem jurisdiction, *463 the bankruptcy court could not order declaratory or injunctive relief against a State without the State's consent. Cf. Raygor v. Regents of Univ. of Minn., 534 U.S. 533, 553, n. 11 (2002). To be sure, the Court has previously held that a State can be bound by a bankruptcy court adjudication that affects a State's interest. See New York v. Irving Trust Co., 288 U.S. 329 (1933); Van Huffel v. Harkelrode, 284 U.S. 225 (1931). But, in neither of those cases did the Court attempt to undertake a sovereign immunity analysis. Irving Trust, for instance, rested on Congress' "power to establish uniform laws on the subject of bankruptcies," 288 U.S., at 331, and the need for "orderly and expeditious proceedings," id., at 333. And in Van Huffel, the Court appeared to rest its decision more on "the requirements of bankruptcy administration," 284 U.S., at 228, than the effect of the in rem nature of the proceedings on state sovereign immunity.[*] Perhaps recognizing that these precedents cannot support the weight of its reasoning, the Court attempts to limit its holding by explicitly declining to find an in rem exception to every exercise of a bankruptcy court's in rem jurisdiction that might offend state sovereignty, ante, at 451, n. 5. But, I can find no principle in the Court's opinion to distinguish this case from any other. For this reason, I would not undertake this complicated inquiry. II Congress has made its intent to abrogate state sovereign immunity under the Bankruptcy Clause clear. See 11 U.S. C. § 106(a). The only question, then, is whether the Bankruptcy Clause grants Congress the power to do so. *464 This Court has repeatedly stated that "Congress may not . . . base its abrogation of the States' Eleventh Amendment immunity upon the powers enumerated in Article I." Board of Trustees of Univ. of Ala. v. Garrett, 531 U.S. 356, 364 (2001). See also, e. g., Kimel v. Florida Bd. of Regents, 528 U.S. 62, 80 (2000) ("Congress' powers under Article I of the Constitution do not include the power to subject States to suit at the hands of private individuals"); Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627, 636 (1999) ("Seminole Tribe makes clear that Congress may not abrogate state sovereign immunity pursuant to its Article I powers"). Despite the clarity of these statements, the Court of Appeals held that the Bankruptcy Clause operates differently from Congress' other Article I powers because of its "uniformity requirement," 319 F.3d 755, 764 (CA6 2003). Our discussions of Congress' inability to abrogate state sovereign immunity through the use of its Article I powers reveal no such limitation. I would therefore reverse the judgment of the Court of Appeals. For the foregoing reasons, I respectfully dissent.

We grated certiorari i this case to decide whether Cogress has the authority to abrogate state sovereig immuity uder the Bakruptcy Clause. Istead of aswerig this questio, the Court addresses a more difficult oe regardig the extet to which a bakruptcy court's exercise of its i rem jurisdictio could offed the sovereigty of a creditor-State. I recogize that, as the Court cocludes today, the i rem ature of bakruptcy proceedigs might affect the ability of a debtor to obtai, by motio, a bakruptcy court determiatio that affects a creditor-State's rights, but I would ot reach this difficult questio here. Eve if the Bakruptcy Court could have exercised its i rem jurisdictio to make a udue hardship determiatio by motio, I caot igore the fact that the determiatio i this case was sought pursuat to a adversary proceedig. Uder Federal Maritime the adversary proceedig here clearly costitutes a suit agaist the State for sovereig immuity purposes. I would thus reach the easier questio preseted ad coclude that Cogress lacks authority to abrogate state sovereig immuity uder the Bakruptcy Clause. I The Court avoids addressig respodet's pricipal argumet — which was the basis for the Court of Appeals' decisio ad which this Court grated certiorari i order to address — amely, that Cogress possesses the power uder the Bakruptcy Clause to abrogate a State's sovereig immuity from suit. Istead, the Court affirms the judgmet of the Court of Appeals based o respodet's alterative argumet, ate, at 445, that the Bakruptcy Court's decisio was "a appropriate exercise of [its] i rem jurisdictio," Brief for Respodet 35. Although respodet advaced this argumet i the proceedigs before the Bakruptcy Appellate Pael of the Sixth Circuit, Brief for Appellee i No. 00-62, p. 8, she declied to do so i the Court of Appeals. Ideed, before that court, respodet relied etirely o Cogress' ability to abrogate state sovereig immuity uder the Bakruptcy Clause rather tha o ay i rem theory because, uder her readig of "there is o i rem exceptio to a state's Eleveth Amedmet immuity" i bakruptcy. Brief for Appellee i No. 01-5769 (CA6), p. 24. Furthermore, respodet did ot raise the i rem argumet i her brief i oppositio before this Court. Uder this Court's Rule 15.2, we may deem this argumet waived. Caterpillar Ad, we should do so here both because the argumet is irrelevat to this case, ad because the i rem questio is both complex ad ucertai, see Baldwi v. Reese, ate, p. 27. *457 A I Federal Maritime Comm', South Carolia Maritime Services, Ic. (SCMS), filed a complait with the Federal Maritime Commissio (FMC), a idepedet agecy, allegig that a state-ru port had violated the Shippig Act of 1984, 46 U.S. C. App. 1701 et seq. We assumed without decidig that the FMC does ot exercise "judicial power," ad oetheless held that state sovereig immuity barred the adjudicatio of SCMS' complait. Federal Maritime Comm' tured o the "overwhelmig" similarities betwee FMC proceedigs ad civil litigatio i federal courts. For example, FMC's rules goverig pleadigs ad discovery are very similar to the aalogous Federal Rules of Civil Procedure. Moreover, we oted that "the role of the [admiistrative law judge], the impartial officer desigated to hear a case, is similar to that of a Article III judge." Based o these similarities, we held that, for purposes of state sovereig immuity, the adjudicatio before the FMC was idistiguishable from a adjudicatio i a Article III tribual. See Thus, Federal Maritime Comm' recogized that if the Framers would have foud it a "impermissible affrot to a State's digity to be required to aswer the complaits of private parties i federal courts," the Framers would have foud it equally impermissible to compel States to do so simply because the adjudicatio takes place i a Article I rather tha a Article III court. Although the Court igores Federal Maritime Comm' altogether, its reasoig applies to this case. The similarities betwee adversary proceedigs i bakruptcy ad federal civil litigatio are strikig. Ideed, the Federal Rules of Civil Procedure gover adversary proceedigs i substatial part. The proceedigs are commeced by the filig of a complait, Fed. Rule Bkrtcy. Proc. 7003; process is served, *4 Rule 7005; the opposig party is required to file a aswer, Rule 7007; ad the opposig party ca file couterclaims agaist the movat, Rule 7013. Federal Rule of Civil Procedure 8 applies to the parties' pleadigs. Fed. Rule Bkrtcy. Proc. 7008. Eve the form of the parties' pleadigs must comply with the federal rules for civil litigatio. Rule 7010. "Likewise, discovery i [adversary proceedigs] largely mirrors discovery i federal civil litigatio." Federal Maritime Comm', See Fed. Rules Bkrtcy. Proc. 7026-7037 (applyig Fed. Rules Civ. Proc. 26-37 to adversary proceedigs). Ad, whe a party fails to aswer or appear i a adversary proceedig, the Federal Rule goverig default judgmets applies. Fed. Rule Bkrtcy. Proc. 7055 (adoptig Fed. Rule Civ. Proc. 55). I spite of these similarities, the Court cocludes that, because the bakruptcy court's jurisdictio is premised o the res, the issuace of process i this case, as opposed to all others, does ot subject a uwillig State to a coercive judicial process. Ate, at 452. The Court also views the adversary proceedig i this case differetly tha a typical adversary proceedig because, abset Federal Rule of Bakruptcy Procedure 7001(6), the Court cocludes that a debtor could obtai a udue hardship determiatio by motio cosistet with a bakruptcy court's i rem jurisdictio ad cosistet with the Costitutio. See ate, at 453. Critically, however, the Court fails to explai why, simply because it asserts that this determiatio could have bee made by motio, the adversary proceedig utilized i this case is somehow less offesive to state sovereigty. After all, "[t]he very object ad purpose of the 11th Amedmet [is] to prevet the idigity of subjectig a State to the coercive process of judicial tribuals at the istace of private parties." I re Ayers, ; Federal Maritime Comm', ; Alde v. Maie, ; Semiole Tribe of The fact that a alterative proceedig exists, *459 the use of which might ot be offesive to state sovereigty, is irrelevat to whether the particular proceedig actually used subjects a particular State to the idigities of coercive process. Ideed, the disset i Federal Maritime Comm', much like the Court today, focused o the fact that the FMC was ot required by statute to evaluate complaits through agecy adjudicatio, -776 (opiio of BREYER, J.), ad could have opted to evaluate complaits i some other maer. But this fact had o bearig o our decisio i that case, or should it cotrol here. I simply caot igore the fact that respodet filed a complait i the Bakruptcy Court "pray[ig] that proper process issue ad that upo a hearig upo the merits that [the court] issue a judgmet for [respodet] ad agaist [petitioer] allowig [respodet's] debt to be discharged." Complait for Hardship Discharge i No. 99-22606-K, Adversary No. 99-0847 (Bkrtcy. Ct. WD Te.), p. 1. More importatly, although the adversary proceedig i this case does ot require the State to "defed itself" agaist petitioer i the ordiary sese, the effect is the same, whether doe by adversary proceedig or by motio, ad whether the proceedig is i persoam or i rem. I order to preserve its rights, the State is compelled either to subject itself to the Bakruptcy Court's jurisdictio or to forfeit its rights. Ad, whatever the ature of the Bakruptcy Court's jurisdictio, it maitais at least as much cotrol over ocosetig States as the FMC, which lacks the power to eforce its ow orders. Federal Maritime Comm' rejected the view that the FMC's lack of eforcemet power meas that parties are ot coerced to participate i its proceedigs because the effect is the same — a State must submit to the adjudicatio or compromise its ability to defed itself i later proceedigs. -. Here, if the State does ot oppose the debtor's claim of udue hardship, the Bakruptcy Court is authorized to eter a default judgmet without makig a udue hardship determiatio. *460 See Fed. Rules Bkrtcy. Proc. 7055, 9014 (adoptig Fed. Rule Civ. Proc. 55 i both adversary proceedigs ad i cotested matters govered by motio). The Court apparetly cocludes otherwise, but, telligly, its oly support for that questioable propositio is a statemet made at oral argumet. See ate, at 453-454. As I explai i Part I-B, ifra, I do ot cotest the assertio that i bakruptcy, like admiralty, there might be a limited i rem exceptio to state sovereig immuity from suit. Nor do I ecessarily reject the argumet that this proceedig could have bee resolved by motio without offedig the digity of the State. However, because this case did ot proceed by motio, I caot resolve the merits based solely upo what might have, but did ot, occur. I would therefore hold that the adversary proceedig i this case costituted a suit agaist the State for sovereig immuity purposes. B The difficulty ad complexity of the questio of the scope of the Bakruptcy Court's i rem jurisdictio as it relates to a State's iterests is a further reaso that the Court should ot address the questio here without complete briefig ad full cosideratio by the Court of Appeals. Relyig o this Court's recet recogitio of a limited i rem exceptio to state sovereig immuity i certai admiralty actios, see Califoria v. Deep Sea Ic., the Court recogizes that "States may still be boud by some judicial actios without their coset," ate, at 446. The Court the ackowledges the udisputed fact that bakruptcy discharge proceedigs are i rem proceedigs. Ate, at 447. These facts, however, stadig aloe, do ot compel the coclusio that the i rem exceptio should exted to this case. Deep Sea does ot make clear the extet of the i rem exceptio i admiralty, much less its potetial applicatio i bakruptcy. The Court's recogitio of a i *461 rem exceptio to state sovereig immuity i admiralty actios was iformed, i part, by Justice Story's uderstadig of the differece betwee admiralty actios ad regular civil litigatio. Justice Story doubted whether the Eleveth Amedmet exteded to admiralty ad maritime suits at all because, i admiralty, "the jurisdictio of the [federal] court is fouded upo the possessio of the thig; ad if the State should iterpose a claim for the property, it does ot act merely i the character of a defedat, but as a actor." 2 Commetaries o the Costitutio of the Uited States 1689, p. 491 (5th ed. 1891). Justice Story supported this view by cotrastig suits i law or equity with suits i admiralty, which received a separate grat of jurisdictio uder Article III. The Court, however, has sice adopted a more arrow uderstadig of the i rem maritime exceptio. See Ex parte New York, ("Nor is the admiralty ad maritime jurisdictio exempt from the operatio of the rule [that a State may ot be sued without its coset]"). Thus, our holdig i Deep Sea was limited to actios where the res is ot withi the State's possessio. -508. Whatever the scope of the i rem exceptio i admiralty, the Court's cases reveal o clear priciple to gover which, if ay, bakruptcy suits are exempt from the Eleveth Amedmet's bar. I the Court stated i o ucertai terms that "[t]he fact that a suit i a federal court is i rem, or quasi i rem, furishes o groud for the issue of process agaist a o-cosetig State." The Court coteds that supports its argumet because there the Court "oted the State might still be boud by the federal court's adjudicatio eve if a ijuctio could ot issue." Ate, at 449, 4. But the Court i also suggested that the State might ot be boud by the federal court's adjudicatio — a more weighty propositio give the circumstaces of the case. i part, ivolved the validity of a federal-court decree etered i 1927, which determied *462 that Sophie Fraz had oly a life iterest i certai shares of stock previously held by her deceased husbad. Whe Fraz died i 1930, Fraz's executor did ot ivetory the shares because the federal-court decree declared Fraz to have oly a life iterest i them. The dispute arose because the State sought to ivetory those shares as assets of Fraz's estate so that it could collect iheritace taxes o those shares. Although did ot decide whether the 1927 federal decree was bidig o the State, the mere suggestio that the State might ot be boud by the decree because it was ot a party to a i rem proceedig i which it had o iterest, see ib at least leaves i doubt the extet of ay i rem exceptio i bakruptcy. Our more recet decisio i Uited States v. Nordic Village, Ic., casts some doubt upo the Court's characterizatio of ay i rem exceptio i bakruptcy. Nordic Village explicitly recogized that "we have ever applied a i rem exceptio to the sovereig-immuity bar agaist moetary recovery, ad have suggested that o such exceptio exists." Although Nordic Village ivolved the sovereig immuity of the Federal Govermet, it also supports the argumet that o i rem exceptio exists for other types of relief agaist a State. Nordic Village iterpreted 11 U.S. C. 106(c) to waive claims for declaratory ad ijuctive, though ot moetary, relief agaist the Govermet. -37. We oted that this iterpretatio did ot reder 106(c) irrelevat because a waiver of immuity with respect to claims for declaratory ad ijuctive relief would "perform a sigificat fuctio" by "permit[ig] a bakruptcy court to determie the amout ad dischargeability of a estate's liability to the Govermet whether or ot the Govermet filed a proof of claim." Our iterpretatio of 106(c) to waive liability oly for declaratory ad ijuctive relief strogly suggests that such a waiver is ecessary — i. e., that without the waiver, despite the bakruptcy court's i rem jurisdictio, *463 the bakruptcy court could ot order declaratory or ijuctive relief agaist a State without the State's coset. Cf. Raygor v. Regets of Uiv. of Mi., 553, 11 To be sure, the Court has previously held that a State ca be boud by a bakruptcy court adjudicatio that affects a State's iterest. See New York v. Irvig Trust Co., ; Va But, i either of those cases did the Court attempt to udertake a sovereig immuity aalysis. Irvig Trust, for istace, rested o Cogress' "power to establish uiform laws o the subject of bakruptcies," ad the eed for "orderly ad expeditious proceedigs," Ad i Va Huffel, the Court appeared to rest its decisio more o "the requiremets of bakruptcy admiistratio," tha the effect of the i rem ature of the proceedigs o state sovereig immuity.[*] Perhaps recogizig that these precedets caot support the weight of its reasoig, the Court attempts to limit its holdig by explicitly decliig to fid a i rem exceptio to every exercise of a bakruptcy court's i rem jurisdictio that might offed state sovereigty, ate, at 451, 5. But, I ca fid o priciple i the Court's opiio to distiguish this case from ay other. For this reaso, I would ot udertake this complicated iquiry. II Cogress has made its itet to abrogate state sovereig immuity uder the Bakruptcy Clause clear. See 11 U.S. C. 106(a). The oly questio, the, is whether the Bakruptcy Clause grats Cogress the power to do so. *464 This Court has repeatedly stated that "Cogress may ot base its abrogatio of the States' Eleveth Amedmet immuity upo the powers eumerated i Article I." Board of Trustees of Uiv. of See also, e. g., Kimel v. Florida Bd. of Regets, ("Cogress' powers uder Article I of the Costitutio do ot iclude the power to subject States to suit at the hads of private idividuals"); Florida Prepaid Postsecodary Ed. Expese Bd. v. College Savigs Bak, ("Semiole Tribe makes clear that Cogress may ot abrogate state sovereig immuity pursuat to its Article I powers"). Despite the clarity of these statemets, the Court of Appeals held that the Bakruptcy Clause operates differetly from Cogress' other Article I powers because of its "uiformity requiremet," Our discussios of Cogress' iability to abrogate state sovereig immuity through the use of its Article I powers reveal o such limitatio. I would therefore reverse the judgmet of the Court of Appeals. For the foregoig reasos, I respectfully disset.

Justice Kennedy

majority

Stone v. INS

1995-04-19

https://www.courtlistener.com/opinion/117922/stone-v-ins/

https://www.courtlistener.com/api/rest/v3/clusters/117922/

1994-046

We consider whether the filing of a timely motion for reconsideration of a decision by the Board of Immigration Appeals tolls the running of the 90-day period for seeking judicial review of the decision. I Petitioner, Marvin Stone, is a citizen of Canada and a businessman and lawyer by profession. He entered the United States in 1977 as a nonimmigrant visitor for business and has since remained in the United States. On January 3, 1983, Stone was convicted of conspiracy and mail fraud, in violation of 18 U.S. C. §§ 371 and 1341. He served 18 months of a 3-year prison term. In March 1987, after his release, the Immigration and Naturalization Service (INS) served him with an order to show cause why he should not be deported as a nonimmigrant who had remained in the United States beyond the period authorized by law. In January 1988, after a series of hearings, an Immigration Judge ordered Stone deported. The IJ concluded that under the regulations in effect when Stone entered the United States, an alien on a nonimmigrant for business visa *389 could remain in the country for an initial period not to exceed six months with the privilege of seeking extensions, which could be granted in 6-month increments. 8 CFR § 214.2 (b) (1977). The IJ ordered deportation under 8 U.S. C. § 1251(a)(2) (now § 1251(a)(1)(B) (1988 ed., Supp. V)) based on petitioner's testimony that he had remained in the United States since 1977 without seeking any extension. The IJ denied Stone's application for suspension of deportation under 8 U.S. C. § 1254(a)(1), concluding that Stone's conviction of mail fraud and 18-month incarceration barred him, as a matter of law, from establishing "good moral character" as required by § 1254. See § 1101(f)(7). Stone's administrative appeals were as follows: he appealed to the Board of Immigration Appeals, which affirmed the IJ's determinations and dismissed the appeal on July 26, 1991; he filed a "Motion to Reopen and/or to Reconsider" with the BIA in August 1991; on February 3, 1993, some 17 months later, the BIA denied the reconsideration motion as frivolous. Judicial review was sought next. The record does not give the precise date, but, sometime in February or March 1993, Stone petitioned the Court of Appeals for the Sixth Circuit for review of both the July 26, 1991, deportation order and the February 3, 1993, order denying reconsideration. The Court of Appeals dismissed the petition for want of jurisdiction to the extent the petition sought review of the July 26, 1991, order, the underlying deportation determination. The court held that the filing of the reconsideration motion did not toll the running of the 90-day filing period for review of final deportation orders. 13 F.3d 934, 938-939 (1994). We granted certiorari, 511 U.S. 1105 (1994), to resolve a conflict among the Circuits on the question, compare Akrap v. INS, 966 F.2d 267, 271 (CA7 1992), and Nocon v. INS, 789 F.2d 1028, 1033 (CA3 1986) (agreeing that the filing of a reconsideration motion does not toll the statutory time limit for seeking review of a deportation order), with Fleary *390 v. INS, 950 F.2d 711, 713 (CA11 1992), Pierre v. INS, 932 F.2d 418, 421 (CA5 1991) (per curiam), Attoh v. INS, 606 F.2d 1273, 1275, n. 15 (CADC 1979), and Bregman v. INS, 351 F.2d 401, 402-403 (CA9 1965) (holding that a petition to review a deportation order is timely if filed within the statutory period following the disposition of a timely filed reconsideration motion). We now affirm. II A Section 106(a)(1) of the Immigration and Nationality Act (INA) specifies that "a petition for review [of a final deportation order] may be filed not later than 90 days after the date of the issuance of the final deportation order, or, in the case of an alien convicted of an aggravated felony, not later than 30 days after the issuance of such order." 8 U.S. C. § 1105a(a)(1) (1988 ed. and Supp. V). The clause pertaining to an "aggravated felony" is not a factor in the analysis, petitioner's offense not being within that defined term. See § 1101(a)(43). He had the benefit of the full 90-day filing period. There is no dispute that a deportation order "become[s] final upon dismissal of an appeal by the Board of Immigration Appeals," 8 CFR § 243.1 (1977), and, the parties agree, the 90-day period started on July 26, 1991. The parties disagree, however, regarding the effect that petitioner's later filing of a timely motion to reconsider had on the finality of the order. Petitioner contends that a timely motion to reconsider renders the underlying order nonfinal, and that a petition seeking review of both the order and the reconsideration denial is timely if filed (as this petition was) within 90 days of the reconsideration denial. The INS argues that the finality and reviewability of an order are unaffected by the filing of a motion to reconsider or to reopen. In its view the Court of Appeals had jurisdiction to review the denial of the motion to reconsider but not to review the original order. *391 We considered the timeliness of a review petition where there is a motion to reconsider or reopen an agency's order in ICC v. Locomotive Engineers, 482 U.S. 270 (1987). The Interstate Commerce Commission's governing statute provided that, with certain exceptions, judicial review of ICC orders would be governed by the Hobbs Administrative Orders Review Act, 28 U.S. C. § 2341 et seq. See Locomotive Engineers, 482 U. S., at 277. We held that "the timely petition for administrative reconsideration stayed the running of the Hobbs Act's limitation period until the petition had been acted upon by the Commission." Id., at 284. Our conclusion, we acknowledged, was in some tension with the language of both the Hobbs Act, which permits an aggrieved party to petition for review "within 60 days after [the] entry" of a final order, 28 U.S. C. § 2344, and of 49 U.S. C. § 10327(i), "which provides that, `[n]otwithstanding' the provision authorizing the Commission to reopen and reconsider its orders (§ 10327(g)), `an action of the Commission . . . is final on the date on which it is served, and a civil action to enforce, enjoin, suspend, or set aside the action may be filed after that date.' " Locomotive Engineers, supra, at 284. We found the controlling language similar to the corresponding provision of the Administrative Procedure Act (APA), 5 U.S. C. § 704, which provides that "agency action otherwise final is final for the purposes of this section [entitled `Actions Reviewable'] whether or not there has been presented or determined an application for . . . any form of reconsideratio[n]"— "language [that] has long been construed . . . merely to relieve parties from the requirement of petitioning for rehearing before seeking judicial review . . . but not to prevent petitions for reconsideration that are actually filed from rendering the orders under reconsideration nonfinal." Locomotive Engineers, supra, at 284-285 (citation omitted). In support of that long-standing construction of the APA language, we cited dicta in two earlier cases, American Farm Lines v. Black Ball Freight Service, 397 U.S. 532, 541 *392 (1970); CAB v. Delta Air Lines, Inc., 367 U.S. 316, 326-327 (1961), and the holding in Outland v. CAB, 284 F.2d 224, 227 (CADC 1960), a decision cited with approval in both Black Ball and Delta. Outland justified treating orders as nonfinal for purposes of review during the pendency of a motion for reconsideration in terms of judicial economy: "[W]hen the party elects to seek a rehearing there is always a possibility that the order complained of will be modified in a way which renders judicial review unnecessary." Outland, supra, at 227. As construed in Locomotive Engineers both the APA and the Hobbs Act embrace a tolling rule: The timely filing of a motion to reconsider renders the underlying order nonfinal for purposes of judicial review. In consequence, pendency of reconsideration renders the underlying decision not yet final, and it is implicit in the tolling rule that a party who has sought rehearing cannot seek judicial review until the rehearing has concluded. 4 K. Davis, Administrative Law Treatise § 26:12 (2d ed. 1988); United Transportation Union v. ICC, 871 F.2d 1114, 1118 (CADC 1989); Bellsouth Corp. v. FCC, 17 F.3d 1487, 1489-1490 (CADC 1994). Indeed, those Circuits that apply the tolling rule have so held. See Fleary, 950 F. 2d, at 711-712 (deportation order not reviewable during pendency of motion to reopen); Hyun Joon Chung v. INS, 720 F.2d 1471, 1474 (CA9 1984) (same). Section 106 of the INA provides that "[t]he procedure prescribed by, and all the provisions of chapter 158 of title 28, shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation . . . ." 8 U.S. C. § 1105a(a) (1988 ed. and Supp. V). The reference to chapter 158 of Title 28 is a reference to the Hobbs Act. In light of our construction of the Hobbs Act in Locomotive Engineers, had Congress used that Act to govern review of deportation orders without further qualification, it would follow that the so-called tolling rule applied. *393 The INS, however, proffers a different reading of Locomotive Engineers. Relying on our statement that the provision of the APA, 5 U.S. C. § 704, has been construed "not to prevent petitions for reconsideration that are actually filed from rendering the orders under reconsideration nonfinal," 482 U.S., at 285 (emphasis supplied), the INS understands Locomotive Engineers to set forth merely a default rule from which agencies may choose to depart. It argues that it did so here. If the case turned on this theory, the question would arise whether an agency subject to either the APA or the Hobbs Act has the authority to specify whether the finality of its orders for purposes of judicial review is affected by the filing of a motion to reconsider. The question is not presented here. Both the Hobbs Act and the APA are congressional enactments, and Congress may alter or modify their application in the case of particular agencies. We conclude that in amending the INA Congress chose to depart from the ordinary judicial treatment of agency orders under reconsideration. B Congress directed that the Hobbs Act procedures would govern review of deportation orders, except for 10 specified qualifications. See 8 U.S. C. § 1105a(a). Two of those exceptions are pertinent. The first, contained in § 106(a)(1) of the INA, provides an alien with 90 days to petition for review of a final deportation order (30 days for aliens convicted of an aggravated felony), instead of the Hobbs Act's 60-day period. See 8 U.S. C. § 1105a(a)(1) (1988 ed., Supp. V). The second and decisive exception is contained in § 106(a)(6), a provision added when Congress amended the INA in 1990. The section provides: "[W]henever a petitioner seeks review of an order under this section, any review sought with respect to a motion to reopen or reconsider such an order shall be *394 consolidated with the review of the order." 8 U.S. C. § 1105a(a)(6). By its terms, § 106(a)(6) contemplates two petitions for review and directs the courts to consolidate the matters. The words of the statute do not permit us to say that the filing of a petition for reconsideration or reopening dislodges the earlier proceeding reviewing the underlying order. The statute, in fact, directs that the motion to reopen or reconsider is to be consolidated with the review of the order, not the other way around. This indicates to us that the action to review the underlying order remains active and pending before the court. We conclude that the statute is best understood as reflecting an intent on the part of Congress that deportation orders are to be reviewed in a timely fashion after issuance, irrespective of the later filing of a motion to reopen or reconsider. Were a motion for reconsideration to render the underlying order nonfinal, there would be, in the normal course, only one petition for review filed and hence nothing for the judiciary to consolidate. As in Locomotive Engineers itself, review would be sought after denial of reconsideration, and both the underlying order and the denial of reconsideration would be reviewed in a single proceeding, insofar, at least, as denial of reconsideration would be reviewable at all. See Locomotive Engineers, 482 U. S., at 280. Indeed, the Ninth Circuit, which before the 1990 amendment had held that pendency of a reconsideration motion did render a deportation order nonfinal, understood that the tolling rule contemplates just one petition for review: "Congress visualized a single administrative proceeding in which all questions relating to an alien's deportation would be raised and resolved, followed by a single petition in a court of appeals for judicial review . . . ." Yamada v. INS, 384 F.2d 214, 218 (CA9 1967). The tolling rule is hard to square with the existence of two separate judicial review proceedings. *395 Under the no-tolling rule, by contrast, two separate petitions for review will exist in the normal course. An order would be final when issued, irrespective of the later filing of a reconsideration motion, and the aggrieved party would seek judicial review of the order within the specified period. Upon denial of reconsideration, the petitioner would file a separate petition to review that second final order. Because it appears that only the no-tolling rule could give rise to two separate petitions for review simultaneously before the courts, which it is plain § 106(a)(6) contemplates, it would seem that only that rule gives meaning to the section. Although the consolidation provision does not mention tolling, see post, at 408 (Breyer, J., dissenting), tolling would be the logical consequence if the statutory scheme provided for the nonfinality of orders upon the filing of a reconsideration motion. Locomotive Engineers ` conclusion as to tolling followed as a necessary consequence from its conclusion about finality. Finality is the antecedent question, and as to that matter the consolidation provision speaks volumes. All would agree that the provision envisions two petitions for review. See post, at 408 (Breyer, J., dissenting). Because only "final deportation order[s]" may be reviewed, 8 U.S. C. § 1105a(a)(1), it follows by necessity that the provision requires for its operation the existence of two separate final orders, the petitions for review of which could be consolidated. The two orders cannot remain final and hence the subject of separate petitions for review if the filing of the reconsideration motion rendered the original order nonfinal. It follows that the filing of the reconsideration motion does not toll the time to petition for review. By speaking to finality, the consolidation provision does say quite a bit about tolling. Recognizing this problem, petitioner at oral argument sought to give meaning to § 106(a)(6) by offering a different version of what often might occur. Petitioner envisioned an alien who petitioned for review of a final deportation order, *396 and, while the petition was still pending, went back to the agency to seek its reconsideration or, if new evidence had arisen, reopening. If, upon denial of reconsideration or reopening, the alien sought review, and the review of the original order were still pending, § 106(a)(6) would apply and the two petitions would be consolidated. The dissent relies on the same assumed state of events. See post, at 409-410. That construct, however, is premised on a view of finality quite inconsistent with the tolling rule petitioner himself proposes. If, as petitioner advocates, the filing of a timely petition for reconsideration before seeking judicial review renders the underlying order nonfinal, so that a reviewing court would lack jurisdiction to review the order until after disposition of the reconsideration motion, one wonders how a court retains jurisdiction merely because the petitioner delays the reconsideration motions until after filing the petition for judicial review of the underlying order. The policy supporting the nonfinality rule—that "when the party elects to seek a rehearing there is always a possibility that the order complained of will be modified in a way which renders judicial review unnecessary," Outland, 284 F. 2d, at 227—applies with equal force where the party seeks agency rehearing after filing a petition for judicial review. Indeed, the Court of Appeals for the District of Columbia Circuit, whose decision in Outland we cited in support of our construction in Locomotive Engineers, has so held in the years following our decision. See Wade v. FCC, 986 F.2d 1433, 1434 (1993) (per curiam) ("The danger of wasted judicial effort . . . arises whether a party seeks agency reconsideration before, simultaneous with, or after filing an appeal or petition for judicial review") (citations omitted). The Wade holding rested on, and is consistent with, our decision in a somewhat analogous context that the filing of a Federal Rule of Civil Procedure 59 motion to alter or amend a district court's judgment strips the appellate court of jurisdiction, whether the Rule 59 motion is filed before or after the notice of appeal. See Griggs *397 v. Provident Consumer Discount Co., 459 U.S. 56, 61 (1982) (per curiam). Our decision, based on a construction of Federal Rule of Appellate Procedure 4(a)(4), noted the "theoretical inconsistency" of permitting the district court to retain jurisdiction to decide the Rule 59 motion while treating the notice of appeal as "adequate for purposes of beginning the appeals process." Griggs, supra, at 59. We need not confirm the correctness of the Wade decision, but neither should we go out of our way to say it is incorrect, as petitioner and the dissent would have us do. The inconsistency in petitioner's construction of § 106(a)(6) is the same inconsistency that we noted in Griggs. Petitioner assumes that a reconsideration motion renders the underlying order nonfinal if the motion is filed before a petition for review, but that finality is unaffected if the reconsideration motion is filed one day after the petition for review. It is implausible that Congress would direct different results in the two circumstances. At any rate, under petitioner's construction the consolidation provision would have effect only in the rarest of circumstances. When Congress acts to amend a statute, we presume it intends its amendment to have real and substantial effect. See Reiter v. Sonotone Corp. , 442 U.S. 330, 339 (1979) (Court must construe statute to give effect, if possible, to every provision); Moskal v. United States, 498 U.S. 103, 109-111 (1990) (same). Had Congress intended review of INS orders to proceed in a manner no different from review of other agencies, as petitioner appears to argue, there would have been no reason for Congress to have included the consolidation provision. The reasonable construction is that the amendment was enacted as an exception, not just to state an already existing rule. Section 106(a)(6) is an explicit exception to the general applicability of the Hobbs Act procedures, so it must be construed as creating a procedure different from normal practice under the Act. We conclude, as did the Court of Appeals, see 13 F.3d, at 938, and the Seventh *398 Circuit, see Akrap, 966 F. 2d, at 271, that the consolidation provision Congress inserted when it amended the Act in 1990 is best understood as reflecting its expectation that in the particular context of INS deportation orders the normal tolling rule will not apply. C Underlying considerations of administrative and judicial efficiency, as well as fairness to the alien, support our conclusion that Congress intended to depart from the conventional tolling rule in deportation cases. Deportation orders are self-executing orders, not dependent upon judicial enforcement. This accounts for the automatic stay mechanism, the statutory provision providing that service of the petition for review of the deportation order stays the deportation absent contrary direction from the court or the alien's aggravated felony status. See 8 U.S. C. § 1105a(a)(3). The automatic stay would be all but a necessity for preserving the jurisdiction of the court, for the agency might not otherwise refrain from enforcement. Indeed, the INA provides that "nothing in this section [Judicial review of orders of deportation and exclusion] shall be construed to require the Attorney General to defer deportation of an alien after the issuance of a deportation order because of the right of judicial review of the order granted by this section." 8 U.S. C. § 1105a(a)(8) (1988 ed., Supp. V). And it has been the long-standing view of the INS, a view we presume Congress understood when it amended the Act in 1990, that a motion for reconsideration does not serve to stay the deportation order. 8 CFR § 3.8 (1977). Cf. Delta Air Lines, 367 U. S., at 325-327 (certificate of public convenience and necessity effective when issued though not final for purposes of judicial review because of pendency of reconsideration motion). Were the tolling rule to apply here, aliens subject to deportation orders might well face a Hobson's choice: petition for agency reconsideration at the risk of immediate deportation, *399 or forgo reconsideration and petition for review to obtain the automatic stay. The choice is a hard one in deportation cases, in that the consequences of deportation are so final, unlike orders in some other administrative contexts. Once an alien has been deported, the courts lack jurisdiction to review the deportation order's validity. See 8 U.S. C. § 1105a(c). This choice is one Congress might not have wished to impose on the alien. An alien who had filed for agency reconsideration might seek to avoid immediate deportation by seeking a judicial stay. At oral argument, petitioner suggested a habeas corpus action as one solution to the dilemma. Even on the assumption that a habeas corpus action would be available, see § 1105a(a) (Exclusiveness of procedure), the solution is unsatisfactory. In evaluating those stay applications the courts would be required to assess the probability of the alien's prevailing on review, turning the stay proceedings into collateral previews of the eventual petitions for review—indeed a preview now implicating the district court, not just the court of appeals. By inviting duplicative review in multiple courts, the normal tolling rule would frustrate, rather than promote, its stated goal of judicial economy. From an even more fundamental standpoint, the policies of the tolling rule are at odds with Congress' policy in adopting the judicial review provisions of the INA. The tolling rule reflects a preference to postpone judicial review to ensure completion of the administrative process. Reconsideration might eliminate the need for judicial intervention, and the resultant saving in judicial resources ought not to be diminished by premature adjudication. By contrast, Congress' "fundamental purpose" in enacting § 106 of the INA was "to abbreviate the process of judicial review . . . in order to frustrate certain practices . . . whereby persons subject to deportation were forestalling departure by dilatory tactics in the courts." Foti v. INS, 375 U.S. 217, 224 (1963). Congress' concern reflected the reality that "in a deportation *400 proceeding . . . as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States." INS v. Doherty, 502 U.S. 314, 321-325 (1992). Congress' intent in adopting and then amending the INA was to expedite both the initiation and the completion of the judicial review process. The tolling rule's policy of delayed review would be at odds with the congressional purpose. The dissent does not dispute that a principal purpose of the 1990 amendments to the INA was to expedite petitions for review and to redress the related problem of successive and frivolous administrative appeals and motions. In the Immigration Act of 1990, Pub. L. 101-649, 104 Stat. 5048, Congress took five steps to reduce or eliminate these abuses. First, it directed the Attorney General to promulgate regulations limiting the number of reconsideration and reopening motions that an alien could file. § 545(b). Second, it instructed the Attorney General to promulgate regulations specifying the maximum time period for the filing of those motions, hinting that a 20-day period would be appropriate. See ibid. Third, Congress cut in half the time for seeking judicial review of the final deportation order, from 180 to 90 days. See ibid. Fourth, Congress directed the Attorney General to define "frivolous behavior for which attorneys may be sanctioned" in connection with administrative appeals and motions. See § 545(a). In the dissent's view, a fifth measure, the consolidation provision, was added for no apparent reason and bears no relation to the other amendments Congress enacted at the same time. It is more plausible that when Congress took the first four steps to solve a problem, the fifth—the consolidation provision—was also part of the solution, and not a step in the other direction. By envisioning that a final deportation order will remain final and reviewable for 90 days from the date of its issuance irrespective of the later filing of a reconsideration motion, Congress' amendment eliminates much if not all of the incentive *401 to file a meritless reconsideration motion, and, like the other amendments adopted at the same time, expedites the time within which the judicial review process of the deportation order begins. D A consideration of the analogous practice of appellate court review of district court judgments confirms the correctness of our construction of Congress' language. The closest analogy to the INS' discretionary petition for agency reconsideration is the motion for relief from judgment under Federal Rule of Civil Procedure 60(b). The effect of Rule 60(b) motions (at least when made more than 10 days after judgment, an exception discussed below), on the finality and appealability of district court judgments is comparable to the effect of reconsideration motions on INS orders. With the exception noted, the filing of a Rule 60(b) motion does not toll the running of the time for taking an appeal, see Fed. Rule Civ. Proc. 60(b); 11 C. Wright & A. Miller, Federal Practice and Procedure § 2871 (1973) (Wright & Miller), and the pendency of the motion before the district court does not affect the continuity of a prior-taken appeal. See ibid. And last but not least, the pendency of an appeal does not affect the district court's power to grant Rule 60 relief. See Standard Oil Co. of Cal. v. United States, 429 U.S. 17, 18-19 (1976) (per curiam); Wright & Miller § 2873 (1994 Supp.). A litigant faced with an unfavorable district court judgment must appeal that judgment within the time allotted by Federal Rule of Appellate Procedure 4, whether or not the litigant first files a Rule 60(b) motion (where the Rule 60 motion is filed more than 10 days following judgment). Either before or after filing his appeal, the litigant may also file a Rule 60(b) motion for relief with the district court. The denial of the motion is appealable as a separate final order, and if the original appeal is still pending it would seem that the court of appeals can consolidate the proceedings. In each of these respects, the practice of litigants under Rule 60(b) is, under *402 our construction, identical to that of aliens who file motions for reconsideration before the BIA. In each case two separate postdecision appeals are filed. For reasons not relevant here, in 1991 the Rules of Appellate Procedure were amended to provide that Rule 60(b) motions filed within 10 days of a district court's judgment do toll the time for taking an appeal. See Fed. Rule App. Proc. 4(a)(4)(F). That amendment added Rule 60(b) motions filed within 10 days of judgment to a list of other post-trial motions that toll the running of the time for appeal, a list that includes Rule 59 motions to alter or amend a judgment. See Fed. Rule App. Proc. 4(a)(4)(C). A consideration of this provision of the appellate rules is quite revealing. The list of post-trial motions that toll the time for appeal is followed, and hence qualified, by the language interpreted in Griggs, language that provides in express terms that these motions also serve to divest the appellate court of jurisdiction where the motions are filed after appeal is taken. The language of Rule 4 undermines the dissent's reliance on a presumption that appellate court jurisdiction once asserted is not divested by further proceedings at the trial or agency level. See post, at 410. Indeed, the practice is most often to the contrary where appellate court review of district court judgments subject to post-trial motions is concerned. See Fed. Rule App. Proc. 4(a)(4) (specifying that the majority of postjudgment motions filed with the district court divest the appellate court of jurisdiction that had once existed). A district court judgment subject to one of these enumerated motions, typified by Rule 59, is reviewable only after, and in conjunction with, review of the denial of the post-trial motion, and just one appeal pends before the appellate court at any one time. In short, the Rules of Appellate Procedure evince a consistent and coherent view of the finality and appealability of district court judgments subject to post-trial motions. The majority of post-trial motions, such as Rule 59, render the *403 underlying judgment nonfinal both when filed before an appeal is taken (thus tolling the time for taking an appeal), and when filed after the notice of appeal (thus divesting the appellate court of jurisdiction). Other motions, such as Rule 60(b) motions filed more than 10 days after judgment, do not affect the finality of a district court's judgment, either when filed before the appeal (no tolling), or afterwards (appellate court jurisdiction not divested). Motions that do toll the time for taking appeal give rise to only one appeal in which all matters are reviewed; motions that do not toll the time for taking an appeal give rise to two separate appellate proceedings that can be consolidated. E Our colleagues in dissent agree that the consolidation provision envisions the existence of two separate petitions for review. See post, at 408. To give the provision meaning while at the same time concluding that the tolling rule applies, the dissent is compelled to conclude that a reconsideration motion before the BIA renders the original order nonfinal if made before a petition for judicial review is filed but does not affect the finality of the order if filed afterwards. See post, at 413-414. The hybrid tolling rule the dissent suggests has no analogue at all in the appellate court-district court context. On the contrary, as we have just observed, the uniform principle where appellate review of district court judgments is concerned is that motions that toll produce but one appeal, motions that do not toll produce two. It is only by creating this new hybrid that the dissent can give meaning to the consolidation provision, and avoid the Hobson's choice for the alien. While litigants who practice before the district courts and the BIA will have familiarity with both types of post-trial motions discussed above, and will have no difficulty practicing under the rule we announce today, practitioners would have no familiarity with the hybrid *404 tolling rule the dissent is compelled to devise in order to give the consolidation provision meaning. It is worthwhile pausing to consider just how many steps the dissent must take to reconcile the consolidation provision with the tolling rule it prefers. The dissent's construction would require that the Court conclude, without any briefing, that our decision in Griggs does not apply to agency review. The dissent would as well disrupt administrative law in general by overturning the practice of the Court of Appeals with the most experience reviewing agency decisions when faced with agency reconsideration motions made after petition for review (the District of Columbia Circuit), thereby resolving a circuit split without any briefing or argument. See post, at 412. Our construction avoids each of these extraordinary steps. It creates a practice parallel to that of appellate courts reviewing district court judgments subject to pending Rule 60(b) motions filed more than 10 days after judgment and requires us to take no firm position on whether Griggs applies to agency review where tolling does occur. But the full import of our decision in Griggs, and the concomitant problem addressed in Wade, are in some sense secondary to our fundamental point of dispute with the dissent. In our view the consolidation provision reflects Congress' intent to depart from the normal tolling rule in this context, whereas on the dissent's view it does not. Congress itself was explicit in stating that the consolidation provision is an exception to the applicability of the Hobbs Act procedures, see supra, at 393, and it took the deliberate step of amending the Act in 1990 to add the provision. The challenge for the dissent is not, then, just to give the consolidation provision some work to do that is consistent with the tolling rule, but to give it some work as an exception to the applicability of the Hobbs Act procedures, a meaning that explains why Congress might have taken trouble to add it. The dissent's construction of the consolidation provision gives it effect, if any, only in what must be those rare instances where aliens first *405 petition for judicial review and then seek agency reconsideration. And, more important, its construction cannot account for Congress' decision to amend the Act in 1990 to provide that the Hobbs Act procedures, which in the normal course include the tolling rule, shall apply "except" for the consolidation provision. F Whatever assessment Congress might have made in enacting the judicial review provisions of the INA in the first instance, we conclude from the consolidation provision added in 1990 that it envisioned two separate petitions filed to review two separate final orders. To be sure, it would have been preferable for Congress to have spoken with greater clarity. Judicial review provisions, however, are jurisdictional in nature and must be construed with strict fidelity to their terms. As we have explained: "Section 106(a) is intended exclusively to prescribe and regulate a portion of the jurisdiction of the federal courts. As a jurisdictional statute, it must be construed both with precision and with fidelity to the terms by which Congress has expressed its wishes." Cheng Fan Kwok v. INS, 392 U.S. 206, 212 (1968). This is all the more true of statutory provisions specifying the timing of review, for those time limits are, as we have often stated, "mandatory and jurisdictional," Missouri v. Jenkins, 495 U.S. 33, 45 (1990), and are not subject to equitable tolling. See Fed. Rule App. Proc. 26(b). * * * The consolidation provision in § 106(a)(6) reflects Congress' understanding that a deportation order is final, and reviewable, when issued. Its finality is not affected by the subsequent filing of a motion to reconsider. The order being final when issued, an alien has 90 days from that date to seek review. The alien, if he chooses, may also seek agency reconsideration *406 of the order and seek review of the disposition upon reconsideration within 90 days of its issuance. Where the original petition is still before the court, the court shall consolidate the two petitions. See 8 U.S. C. § 1105a(a)(6) (1988 ed., Supp. V). Because Stone's petition was filed more than 90 days after the issuance of the BIA's July 26, 1991, decision, the Court of Appeals lacked jurisdiction to review that order. The judgment of the Court of Appeals is affirmed. It is so ordered.

We consider whether the filing of a timely motion for reconsideration of a decision by the Board of Immigration Appeals tolls the running of the 90-day period for seeking judicial review of the decision. I Petitioner, Marvin Stone, is a citizen of Canada and a businessman and lawyer by profession. He entered the United States in 1977 as a nonimmigrant visitor for business and has since remained in the United States. On January 3, 1983, Stone was convicted of conspiracy and mail fraud, in violation of 18 U.S. C. 371 and 1341. He served 18 months of a 3-year prison term. In March 1987, after his release, the Immigration and Naturalization Service (INS) served him with an order to show cause why he should not be deported as a nonimmigrant who had remained in the United States beyond the period authorized by law. In January 1988, after a series of hearings, an Immigration Judge ordered Stone deported. The IJ concluded that under the regulations in effect when Stone entered the United States, an alien on a nonimmigrant for business visa *389 could remain in the country for an initial period not to exceed six months with the privilege of seeking extensions, which could be granted in 6-month increments. (1977). The IJ ordered deportation under 8 U.S. C. 1251(a)(2) (now 1251(a)(1)(B) (1988 ed., Supp. V)) based on petitioner's testimony that he had remained in the United States since 1977 without seeking any extension. The IJ denied Stone's application for suspension of deportation under 8 U.S. C. 1254(a)(1), concluding that Stone's conviction of mail fraud and 18-month incarceration barred him, as a matter of law, from establishing "good moral character" as required by 1254. See 1101(f)(7). Stone's administrative appeals were as follows: he appealed to the Board of Immigration Appeals, which affirmed the IJ's determinations and dismissed the appeal on July 26, ; he filed a "Motion to Reopen and/or to Reconsider" with the BIA in August ; on February 3, some 17 months later, the BIA denied the reconsideration motion as frivolous. Judicial review was sought next. The record does not give the precise date, but, sometime in February or March Stone petitioned the Court of Appeals for the Sixth Circuit for review of both the July 26, deportation order and the February 3, order denying reconsideration. The Court of Appeals dismissed the petition for want of jurisdiction to the extent the petition sought review of the July 26, order, the underlying deportation determination. The court held that the filing of the reconsideration motion did not toll the running of the 90-day filing period for review of final deportation orders. We granted certiorari, to resolve a conflict among the Circuits on the question, compare and with Fleary and We now affirm. II A Section 106(a)(1) of the Immigration and Nationality Act (INA) specifies that "a petition for review [of a final deportation order] may be filed not later than 90 days after the date of the issuance of the final deportation order, or, in the case of an alien convicted of an aggravated felony, not later than 30 days after the issuance of such order." 8 U.S. C. 1105a(a)(1) (1988 ed. and Supp. V). The clause pertaining to an "aggravated felony" is not a factor in the analysis, petitioner's offense not being within that defined term. See 1101(a)(43). He had the benefit of the full 90-day filing period. There is no dispute that a deportation order "become[s] final upon dismissal of an appeal by the Board of Immigration Appeals," 8 CFR 243.1 (1977), and, the parties agree, the 90-day period started on July 26, The parties disagree, however, regarding the effect that petitioner's later filing of a timely motion to reconsider had on the finality of the order. Petitioner contends that a timely motion to reconsider renders the underlying order nonfinal, and that a petition seeking review of both the order and the reconsideration denial is timely if filed (as this petition was) within 90 days of the reconsideration denial. The INS argues that the finality and reviewability of an order are unaffected by the filing of a motion to reconsider or to reopen. In its view the Court of Appeals had jurisdiction to review the denial of the motion to reconsider but not to review the original order. *391 We considered the timeliness of a review petition where there is a motion to reconsider or reopen an agency's order in The Interstate Commerce Commission's governing statute provided that, with certain exceptions, judicial review of ICC orders would be governed by the Hobbs Administrative Orders Review Act, 28 U.S. C. 2341 et seq. See Locomotive We held that "the timely petition for administrative reconsideration stayed the running of the Hobbs Act's limitation period until the petition had been acted upon by the Commission." Our conclusion, we acknowledged, was in some tension with the language of both the Hobbs Act, which permits an aggrieved party to petition for review "within 60 days after [the] entry" of a final order, 28 U.S. C. 2344, and of 49 U.S. C. 10327(i), "which provides that, `[n]otwithstanding' the provision authorizing the Commission to reopen and reconsider its orders ( 10327(g)), `an action of the Commission is final on the date on which it is served, and a civil action to enforce, enjoin, suspend, or set aside the action may be filed after that date.' " Locomotive We found the controlling language similar to the corresponding provision of the Administrative Procedure Act (APA), 5 U.S. C. 704, which provides that "agency action otherwise final is final for the purposes of this section [entitled `Actions Reviewable'] whether or not there has been presented or determined an application for any form of reconsideratio[n]"— "language [that] has long been construed merely to relieve parties from the requirement of petitioning for rehearing before seeking judicial review but not to prevent petitions for reconsideration that are actually filed from rendering the orders under reconsideration nonfinal." Locomotive -285 In support of that long-standing construction of the APA language, we cited dicta in two earlier cases, American Farm ; and the holding in a decision cited with approval in both Black Ball and Delta. justified treating orders as nonfinal for purposes of review during the pendency of a motion for reconsideration in terms of judicial economy: "[W]hen the party elects to seek a rehearing there is always a possibility that the order complained of will be modified in a way which renders judicial review unnecessary." at As construed in Locomotive both the APA and the Hobbs Act embrace a tolling rule: The timely filing of a motion to reconsider renders the underlying order nonfinal for purposes of judicial review. In consequence, pendency of reconsideration renders the underlying decision not yet final, and it is implicit in the tolling rule that a party who has sought rehearing cannot seek judicial review until the rehearing has concluded. 4 K. Davis, Administrative Law Treatise 26:12 (2d ed. 1988); United Transportation ; Bellsouth Indeed, those Circuits that apply the tolling rule have so held. See Fleary, 950 F. 2d, at 711-712 (deportation order not reviewable during pendency of motion to reopen); Hyun Joon Section 106 of the INA provides that "[t]he procedure prescribed by, and all the provisions of chapter 158 of title 28, shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation" 8 U.S. C. 1105a(a) (1988 ed. and Supp. V). The reference to chapter 158 of Title 28 is a reference to the Hobbs Act. In light of our construction of the Hobbs Act in Locomotive had Congress used that Act to govern review of deportation orders without further qualification, it would follow that the so-called tolling rule applied. *393 The INS, however, proffers a different reading of Locomotive Relying on our statement that the provision of the APA, 5 U.S. C. 704, has been construed "not to prevent petitions for reconsideration that are actually filed from rendering the orders under reconsideration nonfinal," the INS understands Locomotive to set forth merely a default rule from which agencies may choose to depart. It argues that it did so here. If the case turned on this theory, the question would arise whether an agency subject to either the APA or the Hobbs Act has the authority to specify whether the finality of its orders for purposes of judicial review is affected by the filing of a motion to reconsider. The question is not presented here. Both the Hobbs Act and the APA are congressional enactments, and Congress may alter or modify their application in the case of particular agencies. We conclude that in amending the INA Congress chose to depart from the ordinary judicial treatment of agency orders under reconsideration. B Congress directed that the Hobbs Act procedures would govern review of deportation orders, except for 10 specified qualifications. See 8 U.S. C. 1105a(a). Two of those exceptions are pertinent. The first, contained in 106(a)(1) of the INA, provides an alien with 90 days to petition for review of a final deportation order (30 days for aliens convicted of an aggravated felony), instead of the Hobbs Act's 60-day period. See 8 U.S. C. 1105a(a)(1) (1988 ed., Supp. V). The second and decisive exception is contained in 106(a)(6), a provision added when Congress amended the INA in 1990. The section provides: "[W]henever a petitioner seeks review of an order under this section, any review sought with respect to a motion to reopen or reconsider such an order shall be *394 consolidated with the review of the order." 8 U.S. C. 1105a(a)(6). By its terms, 106(a)(6) contemplates two petitions for review and directs the courts to consolidate the matters. The words of the statute do not permit us to say that the filing of a petition for reconsideration or reopening dislodges the earlier proceeding reviewing the underlying order. The statute, in fact, directs that the motion to reopen or reconsider is to be consolidated with the review of the order, not the other way around. This indicates to us that the action to review the underlying order remains active and pending before the court. We conclude that the statute is best understood as reflecting an intent on the part of Congress that deportation orders are to be reviewed in a timely fashion after issuance, irrespective of the later filing of a motion to reopen or reconsider. Were a motion for reconsideration to render the underlying order nonfinal, there would be, in the normal course, only one petition for review filed and hence nothing for the judiciary to consolidate. As in Locomotive itself, review would be sought after denial of reconsideration, and both the underlying order and the denial of reconsideration would be reviewed in a single proceeding, insofar, at least, as denial of reconsideration would be reviewable at all. See Locomotive Indeed, the Ninth Circuit, which before the 1990 amendment had held that pendency of a reconsideration motion did render a deportation order nonfinal, understood that the tolling rule contemplates just one petition for review: "Congress visualized a single administrative proceeding in which all questions relating to an alien's deportation would be raised and resolved, followed by a single petition in a court of appeals for judicial review" The tolling rule is hard to square with the existence of two separate judicial review proceedings. *395 Under the no-tolling rule, by contrast, two separate petitions for review will exist in the normal course. An order would be final when issued, irrespective of the later filing of a reconsideration motion, and the aggrieved party would seek judicial review of the order within the specified period. Upon denial of reconsideration, the petitioner would file a separate petition to review that second final order. Because it appears that only the no-tolling rule could give rise to two separate petitions for review simultaneously before the courts, which it is plain 106(a)(6) contemplates, it would seem that only that rule gives meaning to the section. Although the consolidation provision does not mention tolling, see post, at 408 (Breyer, J., dissenting), tolling would be the logical consequence if the statutory scheme provided for the nonfinality of orders upon the filing of a reconsideration motion. Locomotive ` conclusion as to tolling followed as a necessary consequence from its conclusion about finality. Finality is the antecedent question, and as to that matter the consolidation provision speaks volumes. All would agree that the provision envisions two petitions for review. See post, at 408 (Breyer, J., dissenting). Because only "final deportation order[s]" may be reviewed, 8 U.S. C. 1105a(a)(1), it follows by necessity that the provision requires for its operation the existence of two separate final orders, the petitions for review of which could be consolidated. The two orders cannot remain final and hence the subject of separate petitions for review if the filing of the reconsideration motion rendered the original order nonfinal. It follows that the filing of the reconsideration motion does not toll the time to petition for review. By speaking to finality, the consolidation provision does say quite a bit about tolling. Recognizing this problem, petitioner at oral argument sought to give meaning to 106(a)(6) by offering a different version of what often might occur. Petitioner envisioned an alien who petitioned for review of a final deportation order, *396 and, while the petition was still pending, went back to the agency to seek its reconsideration or, if new evidence had arisen, reopening. If, upon denial of reconsideration or reopening, the alien sought review, and the review of the original order were still pending, 106(a)(6) would apply and the two petitions would be consolidated. The dissent relies on the same assumed state of events. See post, at 409-410. That construct, however, is premised on a view of finality quite inconsistent with the tolling rule petitioner himself proposes. If, as petitioner advocates, the filing of a timely petition for reconsideration before seeking judicial review renders the underlying order nonfinal, so that a reviewing court would lack jurisdiction to review the order until after disposition of the reconsideration motion, one wonders how a court retains jurisdiction merely because the petitioner delays the reconsideration motions until after filing the petition for judicial review of the underlying order. The policy supporting the nonfinality rule—that "when the party elects to seek a rehearing there is always a possibility that the order complained of will be modified in a way which renders judicial review unnecessary," 284 F. 2d, at —applies with equal force where the party seeks agency rehearing after filing a petition for judicial review. Indeed, the Court of Appeals for the District of Columbia Circuit, whose decision in we cited in support of our construction in Locomotive has so held in the years following our decision. See ("The danger of wasted judicial effort arises whether a party seeks agency reconsideration before, simultaneous with, or after filing an appeal or petition for judicial review") (citations omitted). The Wade holding rested on, and is consistent with, our decision in a somewhat analogous context that the filing of a Federal Rule of Civil Procedure 59 motion to alter or amend a district court's judgment strips the appellate court of jurisdiction, whether the Rule 59 motion is filed before or after the notice of appeal. See Our decision, based on a construction of Federal Rule of Appellate Procedure 4(a)(4), noted the "theoretical inconsistency" of permitting the district court to retain jurisdiction to decide the Rule 59 motion while treating the notice of appeal as "adequate for purposes of beginning the appeals process." We need not confirm the correctness of the Wade decision, but neither should we go out of our way to say it is incorrect, as petitioner and the dissent would have us do. The inconsistency in petitioner's construction of 106(a)(6) is the same inconsistency that we noted in Petitioner assumes that a reconsideration motion renders the underlying order nonfinal if the motion is filed before a petition for review, but that finality is unaffected if the reconsideration motion is filed one day after the petition for review. It is implausible that Congress would direct different results in the two circumstances. At any rate, under petitioner's construction the consolidation provision would have effect only in the rarest of circumstances. When Congress acts to amend a statute, we presume it intends its amendment to have real and substantial effect. See ; Had Congress intended review of INS orders to proceed in a manner no different from review of other agencies, as petitioner appears to argue, there would have been no reason for Congress to have included the consolidation provision. The reasonable construction is that the amendment was enacted as an exception, not just to state an already existing rule. Section 106(a)(6) is an explicit exception to the general applicability of the Hobbs Act procedures, so it must be construed as creating a procedure different from normal practice under the Act. We conclude, as did the Court of Appeals, see and the Seventh *398 Circuit, see Akrap, 966 F. 2d, at that the consolidation provision Congress inserted when it amended the Act in 1990 is best understood as reflecting its expectation that in the particular context of INS deportation orders the normal tolling rule will not apply. C Underlying considerations of administrative and judicial efficiency, as well as fairness to the alien, support our conclusion that Congress intended to depart from the conventional tolling rule in deportation cases. Deportation orders are self-executing orders, not dependent upon judicial enforcement. This accounts for the automatic stay mechanism, the statutory provision providing that service of the petition for review of the deportation order stays the deportation absent contrary direction from the court or the alien's aggravated felony status. See 8 U.S. C. 1105a(a)(3). The automatic stay would be all but a necessity for preserving the jurisdiction of the court, for the agency might not otherwise refrain from enforcement. Indeed, the INA provides that "nothing in this section [Judicial review of orders of deportation and exclusion] shall be construed to require the Attorney General to defer deportation of an alien after the issuance of a deportation order because of the right of judicial review of the order granted by this section." 8 U.S. C. 1105a(a)(8) (1988 ed., Supp. V). And it has been the long-standing view of the INS, a view we presume Congress understood when it amended the Act in 1990, that a motion for reconsideration does not serve to stay the deportation order. 8 CFR 3.8 (1977). Cf. Delta Air -327 Were the tolling rule to apply here, aliens subject to deportation orders might well face a Hobson's choice: petition for agency reconsideration at the risk of immediate deportation, *399 or forgo reconsideration and petition for review to obtain the automatic stay. The choice is a hard one in deportation cases, in that the consequences of deportation are so final, unlike orders in some other administrative contexts. Once an alien has been deported, the courts lack jurisdiction to review the deportation order's validity. See 8 U.S. C. 1105a(c). This choice is one Congress might not have wished to impose on the alien. An alien who had filed for agency reconsideration might seek to avoid immediate deportation by seeking a judicial stay. At oral argument, petitioner suggested a habeas corpus action as one solution to the dilemma. Even on the assumption that a habeas corpus action would be available, see 1105a(a) (Exclusiveness of procedure), the solution is unsatisfactory. In evaluating those stay applications the courts would be required to assess the probability of the alien's prevailing on review, turning the stay proceedings into collateral previews of the eventual petitions for review—indeed a preview now implicating the district court, not just the court of appeals. By inviting duplicative review in multiple courts, the normal tolling rule would frustrate, rather than promote, its stated goal of judicial economy. From an even more fundamental standpoint, the policies of the tolling rule are at odds with Congress' policy in adopting the judicial review provisions of the INA. The tolling rule reflects a preference to postpone judicial review to ensure completion of the administrative process. Reconsideration might eliminate the need for judicial intervention, and the resultant saving in judicial resources ought not to be diminished by premature adjudication. By contrast, Congress' "fundamental purpose" in enacting 106 of the INA was "to abbreviate the process of judicial review in order to frustrate certain practices whereby persons subject to deportation were forestalling departure by dilatory tactics in the courts." Congress' concern reflected the reality that "in a deportation *400 proceeding as a general matter, every delay works to the advantage of the deportable alien who wishes merely to remain in the United States." Congress' intent in adopting and then amending the INA was to expedite both the initiation and the completion of the judicial review process. The tolling rule's policy of delayed review would be at odds with the congressional purpose. The dissent does not dispute that a principal purpose of the 1990 amendments to the INA was to expedite petitions for review and to redress the related problem of successive and frivolous administrative appeals and motions. In the Immigration Act of 1990, Stat. 5048, Congress took five steps to reduce or eliminate these abuses. First, it directed the Attorney General to promulgate regulations limiting the number of reconsideration and reopening motions that an alien could file. 5. Second, it instructed the Attorney General to promulgate regulations specifying the maximum time period for the filing of those motions, hinting that a 20-day period would be appropriate. See Third, Congress cut in half the time for seeking judicial review of the final deportation order, from 180 to 90 days. See Fourth, Congress directed the Attorney General to define "frivolous behavior for which attorneys may be sanctioned" in connection with administrative appeals and motions. See 5(a). In the dissent's view, a fifth measure, the consolidation provision, was added for no apparent reason and bears no relation to the other amendments Congress enacted at the same time. It is more plausible that when Congress took the first four steps to solve a problem, the fifth—the consolidation provision—was also part of the solution, and not a step in the other direction. By envisioning that a final deportation order will remain final and reviewable for 90 days from the date of its issuance irrespective of the later filing of a reconsideration motion, Congress' amendment eliminates much if not all of the incentive *401 to file a meritless reconsideration motion, and, like the other amendments adopted at the same time, expedites the time within which the judicial review process of the deportation order begins. D A consideration of the analogous practice of appellate court review of district court judgments confirms the correctness of our construction of Congress' language. The closest analogy to the INS' discretionary petition for agency reconsideration is the motion for relief from judgment under Federal Rule of Civil Procedure 60. The effect of Rule 60 motions (at least when made more than 10 days after judgment, an exception discussed below), on the finality and appealability of district court judgments is comparable to the effect of reconsideration motions on INS orders. With the exception noted, the filing of a Rule 60 motion does not toll the running of the time for taking an appeal, see Fed. Rule Civ. Proc. 60; 11 C. Wright & A. Miller, Federal Practice and Procedure 2871 (1973) (Wright & Miller), and the pendency of the motion before the district court does not affect the continuity of a prior-taken appeal. See And last but not least, the pendency of an appeal does not affect the district court's power to grant Rule 60 relief. See Standard Oil Co. of ; Wright & Miller 2873 ( Supp.). A litigant faced with an unfavorable district court judgment must appeal that judgment within the time allotted by Federal Rule of Appellate Procedure 4, whether or not the litigant first files a Rule 60 motion (where the Rule 60 motion is filed more than 10 days following judgment). Either before or after filing his appeal, the litigant may also file a Rule 60 motion for relief with the district court. The denial of the motion is appealable as a separate final order, and if the original appeal is still pending it would seem that the court of appeals can consolidate the proceedings. In each of these respects, the practice of litigants under Rule 60 is, under *402 our construction, identical to that of aliens who file motions for reconsideration before the BIA. In each case two separate postdecision appeals are filed. For reasons not relevant here, in the Rules of Appellate Procedure were amended to provide that Rule 60 motions filed within 10 days of a district court's judgment do toll the time for taking an appeal. See Fed. Rule App. Proc. 4(a)(4)(F). That amendment added Rule 60 motions filed within 10 days of judgment to a list of other post-trial motions that toll the running of the time for appeal, a list that includes Rule 59 motions to alter or amend a judgment. See Fed. Rule App. Proc. 4(a)(4)(C). A consideration of this provision of the appellate rules is quite revealing. The list of post-trial motions that toll the time for appeal is followed, and hence qualified, by the language interpreted in language that provides in express terms that these motions also serve to divest the appellate court of jurisdiction where the motions are filed after appeal is taken. The language of Rule 4 undermines the dissent's reliance on a presumption that appellate court jurisdiction once asserted is not divested by further proceedings at the trial or agency level. See post, at 410. Indeed, the practice is most often to the contrary where appellate court review of district court judgments subject to post-trial motions is concerned. See Fed. Rule App. Proc. 4(a)(4) (specifying that the majority of postjudgment motions filed with the district court divest the appellate court of jurisdiction that had once existed). A district court judgment subject to one of these enumerated motions, typified by Rule 59, is reviewable only after, and in conjunction with, review of the denial of the post-trial motion, and just one appeal pends before the appellate court at any one time. In short, the Rules of Appellate Procedure evince a consistent and coherent view of the finality and appealability of district court judgments subject to post-trial motions. The majority of post-trial motions, such as Rule 59, render the *403 underlying judgment nonfinal both when filed before an appeal is taken (thus tolling the time for taking an appeal), and when filed after the notice of appeal (thus divesting the appellate court of jurisdiction). Other motions, such as Rule 60 motions filed more than 10 days after judgment, do not affect the finality of a district court's judgment, either when filed before the appeal (no tolling), or afterwards (appellate court jurisdiction not divested). Motions that do toll the time for taking appeal give rise to only one appeal in which all matters are reviewed; motions that do not toll the time for taking an appeal give rise to two separate appellate proceedings that can be consolidated. E Our colleagues in dissent agree that the consolidation provision envisions the existence of two separate petitions for review. See post, at 408. To give the provision meaning while at the same time concluding that the tolling rule applies, the dissent is compelled to conclude that a reconsideration motion before the BIA renders the original order nonfinal if made before a petition for judicial review is filed but does not affect the finality of the order if filed afterwards. See post, at 413-414. The hybrid tolling rule the dissent suggests has no analogue at all in the appellate court-district court context. On the contrary, as we have just observed, the uniform principle where appellate review of district court judgments is concerned is that motions that toll produce but one appeal, motions that do not toll produce two. It is only by creating this new hybrid that the dissent can give meaning to the consolidation provision, and avoid the Hobson's choice for the alien. While litigants who practice before the district courts and the BIA will have familiarity with both types of post-trial motions discussed above, and will have no difficulty practicing under the rule we announce today, practitioners would have no familiarity with the hybrid *404 tolling rule the dissent is compelled to devise in order to give the consolidation provision meaning. It is worthwhile pausing to consider just how many steps the dissent must take to reconcile the consolidation provision with the tolling rule it prefers. The dissent's construction would require that the Court conclude, without any briefing, that our decision in does not apply to agency review. The dissent would as well disrupt administrative law in general by overturning the practice of the Court of Appeals with the most experience reviewing agency decisions when faced with agency reconsideration motions made after petition for review (the District of Columbia Circuit), thereby resolving a circuit split without any briefing or argument. See post, at 412. Our construction avoids each of these extraordinary steps. It creates a practice parallel to that of appellate courts reviewing district court judgments subject to pending Rule 60 motions filed more than 10 days after judgment and requires us to take no firm position on whether applies to agency review where tolling does occur. But the full import of our decision in and the concomitant problem addressed in Wade, are in some sense secondary to our fundamental point of dispute with the dissent. In our view the consolidation provision reflects Congress' intent to depart from the normal tolling rule in this context, whereas on the dissent's view it does not. Congress itself was explicit in stating that the consolidation provision is an exception to the applicability of the Hobbs Act procedures, see and it took the deliberate step of amending the Act in 1990 to add the provision. The challenge for the dissent is not, then, just to give the consolidation provision some work to do that is consistent with the tolling rule, but to give it some work as an exception to the applicability of the Hobbs Act procedures, a meaning that explains why Congress might have taken trouble to add it. The dissent's construction of the consolidation provision gives it effect, if any, only in what must be those rare instances where aliens first *405 petition for judicial review and then seek agency reconsideration. And, more important, its construction cannot account for Congress' decision to amend the Act in 1990 to provide that the Hobbs Act procedures, which in the normal course include the tolling rule, shall apply "except" for the consolidation provision. F Whatever assessment Congress might have made in enacting the judicial review provisions of the INA in the first instance, we conclude from the consolidation provision added in 1990 that it envisioned two separate petitions filed to review two separate final orders. To be sure, it would have been preferable for Congress to have spoken with greater clarity. Judicial review provisions, however, are jurisdictional in nature and must be construed with strict fidelity to their terms. As we have explained: "Section 106(a) is intended exclusively to prescribe and regulate a portion of the jurisdiction of the federal courts. As a jurisdictional statute, it must be construed both with precision and with fidelity to the terms by which Congress has expressed its wishes." Cheng Fan This is all the more true of statutory provisions specifying the timing of review, for those time limits are, as we have often stated, "mandatory and jurisdictional," and are not subject to equitable tolling. See Fed. Rule App. Proc. 26. * * * The consolidation provision in 106(a)(6) reflects Congress' understanding that a deportation order is final, and reviewable, when issued. Its finality is not affected by the subsequent filing of a motion to reconsider. The order being final when issued, an alien has 90 days from that date to seek review. The alien, if he chooses, may also seek agency reconsideration *406 of the order and seek review of the disposition upon reconsideration within 90 days of its issuance. Where the original petition is still before the court, the court shall consolidate the two petitions. See 8 U.S. C. 1105a(a)(6) (1988 ed., Supp. V). Because Stone's petition was filed more than 90 days after the issuance of the BIA's July 26, decision, the Court of Appeals lacked jurisdiction to review that order. The judgment of the Court of Appeals is affirmed. It is so ordered.

Justice Breyer

dissenting

Stone v. INS

1995-04-19

https://www.courtlistener.com/opinion/117922/stone-v-ins/

https://www.courtlistener.com/api/rest/v3/clusters/117922/

1994-046

The majority reads § 106(a) of the Immigration and Nationality Act (INA), 8 U.S. C. § 1105a(a) (1988 ed., Supp. V), as creating an exception to the ordinary legal rules that govern the interaction of (1) motions for agency reconsideration with (2) time limits for appeals. In my view, the statute does not create such an exception. And, reading it to do so risks unnecessary complexity in the technical, but important, matter of how one petitions a court for judicial review of an adverse agency decision. For these reasons, I dissent. This Court, in ICC v. Locomotive Engineers, 482 U.S. 270 (1987), considered the interaction between reconsideration motions and appeal time limits when one wants to petition a court of appeals to review an adverse judgment of an administrative agency (which I shall call an "agency/court" appeal). The Court held that this interaction resembled that which takes place between (1) an appeal from a district court judgment to a court of appeals (which I shall call a "court/court" appeal) and (2) certain motions for district court reconsideration, namely, those filed soon after entry of the district court judgment. See Fed. Rule App. Proc. 4(a)(4). The relevant statute (commonly called the Hobbs Act) said that a petition for review of a final agency order may be filed in the court *407 of appeals "within 60 days after its entry." 28 U.S. C. § 2344. The Court concluded, on the basis of precedent, that the filing of a proper petition for reconsideration, "within the period allotted for judicial review of the original order . . . tolls the period for judicial review of the original order." 482 U.S., at 279. That order can "be appealed to the courts. . . after the petition for reconsideration is denied." Ibid. See also id., at 284-285. In my view, we should interpret the INA as calling for tolling, just as we interpreted the Hobbs Act in Locomotive Engineers. For one thing, the appeals time limit language in the INA is similar to that in the Hobbs Act. Like the Hobbs Act, the INA does not mention tolling explicitly; it simply says that "a petition for review may be filed not later than 90 days after the date of the issuance of the final deportation order." INA § 106(a)(1), 8 U.S. C. § 1105a(a)(1) (1988 ed., Supp. V). More importantly, the INA explicitly states that the "procedure prescribed by, and all the provisions of [the Hobbs Act, 28 U.S. C. § 2341 et seq., ] shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation." INA § 106(a), 8 U.S. C. § 1105a(a). This statutory phrase is not conclusive because it is followed by several exceptions, one of which is the subsection setting the "[t]ime for filing [a] petition" for review. INA § 106(a)(1), 8 U.S. C. § 1105a(a)(1). But, the context suggests that the reason for calling the latter clause an exception lies in the number of days permitted for filing— 90 in the INA, as opposed to 60 in the Hobbs Act. Nothing in the language of § 106(a) (which was amended three years after Locomotive Engineers, see Immigration Act of 1990, § 545(b), 104 Stat. 5065) suggests any further exception in respect to tolling. Finally, interpreting the INA and the Hobbs Act consistently makes it easier for the bar to understand, and to follow, these highly technical rules. With consistent rules, a nonimmigration-specialist lawyer (say, a lawyer used to working *408 in the ordinary agency/court context) who seeks reconsideration of a Board of Immigration Appeals (BIA) decision is less likely to lose his client's right to appeal simply through inadvertence. The majority reaches a different conclusion because it believes that one subsection of the INA, § 106(a)(6), is inconsistent with the ordinary Locomotive Engineers tolling rule. That subsection says that "whenever a petitioner seeks [(1)] review of [a final deportation] order . . . any [(2)] review sought with respect to a motion to reopen or reconsider such an order shall be consolidated with the review of the order." 8 U.S. C. § 1105a(a)(6) (1988 ed., Supp. V). This "consolidation" subsection, however, says nothing about tolling. Indeed, it does not address, even in a general way, the timing of petitions for judicial review; it just says what must happen when two reviews make it separately to the court of appeals and are on the court's docket at the same time (i. e., they must be consolidated). And, the legislative history is likewise silent on the matter. See, e. g., H. R. Conf. Rep. No. 101-955, pp. 132-133 (1990). Given that § 106(a)(6) was enacted only three years after Locomotive Engineers, it seems unlikely that Congress consciously created a significantly different approach to the reviewdeadline/reconsideration-petition problem (with the consequent risk of confusing lawyers) in so indirect a manner. Nevertheless, the majority believes this subsection is inconsistent with the ordinary Locomotive Engineers tolling rule because application of the ordinary tolling rule would normally lead an alien to appeal both (1) the original deportation order and (2) a denial of agency reconsideration, in a single petition, after the denial takes place. Thus, in the majority's view, one could never find (1) a petition to review an original deportation order and (2) a petition to review a denial of a motion to reconsider that order, properly together *409 in the court of appeals at the same time. And, for that reason, there would be nothing to "consolidate" under the statute. An opposite rule (one which denies tolling) would, in the majority's view, sometimes produce (simultaneously) both (1) an initial appeal from the original order and (2) an appeal from a denial of reconsideration (if the reconsideration motion were decided, and the second appeal taken, before the court could decide the initial appeal). The "notolling" rule would therefore sometimes produce two appeals, ready for consolidation. The majority concludes that it must infer this "no-tolling" rule in order to give the "consolidation" subsection some work to do and thereby make it legally meaningful. I do not believe it necessary, however, to create a special exception from the ordinary Locomotive Engineers tolling rule in order to make the "consolidation" subsection meaningful, for even under that ordinary tolling rule, the "consolidation" subsection will have work to do. Consider the following case: The BIA enters a final deportation order on Day Zero. The alien files a timely petition for review in a court of appeals on Day 50. Circumstances suddenly change—say, in the alien's home country—and on Day 70 the alien then files a motion to reopen with the agency. (The majority says such a filing "must be" a "rare" happening, ante, at 404, but I do not see why. New circumstances justifying reopening or reconsideration might arise at any time. Indeed, this situation must arise with some frequency, since INS regulations expressly recognize that a motion to reopen or reconsider may be filed after judicial review has been sought. See, e. g., 8 CFR § 3.8(a) (1994) (requiring that motions to reopen or reconsider state whether the validity of the order to be reopened has been, or is, the subject of a judicial proceeding).) The agency denies the reconsideration motion on Day 100. The alien then appeals that denial on Day 110. In this case, the court of appeals would have before it two appeals: the appeal filed on Day 50 and the appeal filed on *410 Day 110. The "consolidation" subsection tells the court of appeals to consolidate those two appeals and decide them together. (In fact, the alien might well have informed the court of appeals, say on Day 70, about the reconsideration motion, in which case the court, unless it thought the motion a frivolous stalling device, might have postponed decision on the merits of the initial appeal, awaiting the results of the reconsideration decision, an appeal from which it could then consolidate with the initial appeal. See, e. g., Gebremichael v. INS, 10 F.3d 28, 33, n. 13 (CA1 1993) (decision on appeal stayed until the agency resolved alien's motion for reconsideration; initial appeal then consolidated with the appeal from the denial of rehearing).) In this example, the subsection would have meaning as an "exception" to the Hobbs Act, cf. ante, at 404-405, since nothing in the Hobbs Act requires the consolidation of court reviews. The majority understands this counterexample, but rejects it, for fear of creating both a conceptual and a precedential problem. Neither of those perceived problems, however, is significant. The conceptual problem the majority fears arises out of the fact that, under the ordinary tolling rule, the filing of a petition for reconsideration is deemed to render an otherwise "final" initial (but not-yet-appealed) order "nonfinal" for purposes of court review. Hence, one may not appeal the merits of that initial order until the district court or agency finally decides the reconsideration petition. The majority believes that the reconsideration petition in the counterexample above (a petition filed after an appeal is taken from the initial order) also renders "nonfinal," and hence not properly appealable, the initial order, removing the initial appeal from the court of appeals, and thereby leaving nothing to consolidate. The answer to this conceptual argument lies in the "general principle" that "jurisdiction, once vested, is not divested, although a state of things should arrive in which original jurisdiction could not be exercised." United States v. The *411 Little Charles, 26 F. Cas. 979, 982 (No. 15,612) (CC Va. 1818) (Marshall, C. J., Circuit Justice), quoted in Republic Nat. Bank of Miami v. United States, 506 U.S. 80 (1992). The first appeal, as of Day 50, has reached the court of appeals. Thus, conceptually speaking, one should not consider a later filed motion for reconsideration as having "divested" the court of jurisdiction. And, practically speaking, it makes sense to leave the appeal there, permitting the court of appeals to decide it, or to delay it, as circumstances dictate (say, depending upon the extent to which effort and resources already have been expended in prosecuting and deciding the appeal). After all, we have long recognized that courts have inherent power to stay proceedings and "to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants." Landis v. North American Co., 299 U.S. 248, 254 (1936); cf. 28 U.S. C. § 1367(c)(3) (1988 ed., Supp. V) (providing that district court may, but need not, decline to exercise supplemental jurisdiction over a claim when it has dismissed all claims over which it has original jurisdiction). The precedential problem, in the majority's view, arises out of Griggs v. Provident Consumer Discount Co., 459 U.S. 56 (1982) (per curiam), a court/court case in which this Court held that the filing of a reconsideration motion under Federal Rule of Civil Procedure 59 caused an earlier filed notice of appeal to "`self-destruc[t],' " 459 U.S., at 61, despite the fact that the earlier-filed notice had "vested" the Court of Appeals with "jurisdiction." Were the same principle to apply in the agency/court context, then the reconsideration motion filed on Day 70 would cause the earlier filed petition for review, filed on Day 50, to "self-destruct," leaving nothing for the court of appeals to consolidate with an eventual appeal from an agency denial of a reconsideration motion (on Day 100). Griggs, however, does not apply in the agency/court context. This Court explicitly rested its decision in Griggs upon the fact that a specific Federal Rule of Appellate Procedure, *412 Rule 4(a)(4), provides for the "self-destruction." That Rule says that upon the filing of, say, a Rule 59 motion to amend a district court judgment, a "notice of appeal filed before the disposition of [e. g., that Rule 59 motion] shall have no effect." By its terms, Rule 4(a)(4) applies only in the court/court context; and, to my knowledge, there is no comparable provision applicable in agency/court contexts such as this one. In the absence of such a provision, Griggs explicitly adds that the "district courts and courts of appeals would both have had the power to modify the same judgment, " 459 U.S., at 60 (emphasis added)—as I believe the agency and the Court of Appeals have here. I recognize that at least one Court of Appeals has adopted an agency/court rule analogous to the "self-destruct" rule set forth in Rule 4(a)(4). Wade v. FCC, 986 F.2d 1433, 1434 (CADC 1993) (per curiam); see also Losh v. Brown, 6 Vet. App. 87, 89 (1993). But see Berroteran-Melendez v. INS, 955 F.2d 1251, 1254 (CA9 1992) (court retains jurisdiction when motion to reopen is filed after the filing of a petition for judicial review); Lozada v. INS, 857 F.2d 10, 12 (CA1 1988) (court retained jurisdiction over petition for review notwithstanding later filed motion to reopen, but held case in abeyance pending agency's decision on the motion). That court's conclusion, however, was based upon a single observation: that "[t]he danger of wasted judicial effort that attends the simultaneous exercise of judicial and agency jurisdiction arises whether a party seeks agency reconsideration before, simultaneous with, or after filing an appeal." Wade, supra, at 1434 (citations omitted) (referring to the danger that the agency's ruling might change the order being appealed, thereby mooting the appeal and wasting any appellate effort expended). While this observation is true enough, it does not justify the "self-destruct" rule, because it fails to take into account other important factors, namely, (a) the principle that jurisdiction, once vested, is generally not divested, and (b) the fact that, in some cases (say, when *413 briefing and argument already have been completed in the court of appeals) judicial economy may actually weigh against stripping the court of jurisdiction. On this last point, it is significant that under the Federal Rules, the motions to revise or reopen court judgments that cause an earlier filed appeal to "self-destruct" must be filed within a few days after the entry of judgment. See, e. g., Fed. Rule Civ. Proc. 4(a)(4) (10 days). The agency rules before us, in contrast, permit a motion for reconsideration (or reopening) well after the entry of the agency's final order. See 8 CFR § 3.8(a) (1994) (no time limit on motion for reconsideration filed with BIA). See also, e. g., 10 CFR § 2.734(a)(1) (1995) (Nuclear Regulatory Commission may consider untimely motion to reopen where "grave issue" raised). This timing difference means that it is less likely in the court/court context than in the agency/court context that "self-destruction" of an earlier filed notice of appeal would interrupt (and therefore waste) a court of appeals review already well underway. Consequently, this Court should not simply assume that the court/court rule applies in the agency/court context. The majority ultimately says we ought not decide whether the "self-destruct" rule applies in the agency/court context. Ante, at 397, 404. But, the decision cannot be avoided. That is because the majority's basic argument—that a tolling rule would deprive the consolidation subsection of meaning—depends upon the assumption that the "self-destruct" rule does apply. And, for the reasons stated above, that assumption is not supported by any statutory or rule-based authority. Because this matter is so complicated, an analogy to the court/court context may help. In that context, in a normal civil case, a losing party has 30 days to file an appeal (60, if the Government is a party). Fed. Rule App. Proc. 4(a)(1). The Rules then distinguish between two kinds of reconsideration motions: those filed within 10 days (including motions for relief from judgment under Federal Rule of Civil Procedure *414 60(b)), which toll the time for appeal, and those filed after 10 days (in the main, other Rule 60(b) motions), which do not toll the time for appeal. See Fed. Rule App. Proc. 4(a)(4). When a party files a motion of the first sort (which I shall call an "immediate" reconsideration motion), a previously filed notice of appeal "self-destructs." Ibid. When a party files a motion of the second sort (which I shall call a "distant" reconsideration motion), a previously filed notice of appeal remains valid. A complex set of rules creates this system, and lawyers normally refer to those rules in order to understand what they are supposed to do. See Fed. Rule App. Proc. 4(a) (and Rules of Civil Procedure cited therein). Agency reconsideration motions are sometimes like "immediate" court reconsideration motions, filed soon after entry of a final order, but sometimes they are like "distant" reconsideration motions, filed long after entry of a final order. (Petitioner in this case filed his motion 35 days after entry of an order that he had 90 days to appeal.) The problem before us is that we lack precise rules, comparable to the Federal Rules of Appellate and Civil Procedure, that distinguish (for appeal preserving purposes) between the "immediate" and the "distant" reconsideration motion. We therefore must read an immigration statute, silent on these matters, in one of three possible ways: (1) as creating rules that make Federal Rules-type distinctions; (2) in effect, as analogizing an agency reconsideration motion to the "distant" court reconsideration motion (and denying tolling); or (3) in effect, as analogizing an agency reconsideration motion to the "immediate" court reconsideration motion (and permitting tolling). The first possibility is a matter for the appropriate Rules Committees, not this Court. Those bodies can focus directly upon the interaction of reconsideration motions and appellate time limits; they can consider relevant similarities and differences between agency/court and court/court appeals; and they can consider the relevance of special, immigrationrelated *415 circumstances, such as the fact that the filing of a petition for review from a "final" deportation order automatically stays deportation, INA § 106(a)(3), 8 U.S. C. § 1105a(a)(3) (1988 ed., Supp. V). The second possibility (that adopted by the majority) creates a serious risk of unfair loss of a right to appeal, because it is inconsistent with Locomotive Engineers (thereby multiplying complexity). And, it has no basis in the INA, which generally incorporates the procedures of the Hobbs Act and the text and history of which simply do not purport to make an exception denying tolling. The third possibility, in my view, is the best of the three, for it promotes uniformity in practice among the agencies; it is consistent with the Hobbs Act, whose procedures the INA generally adopts; and it thereby helps to avoid inadvertent or unfair loss of the right to appeal. The upshot is that Locomotive Engineers, Griggs, the language of the immigration statute before us, the language of the Federal Rules, and various practical considerations together argue for an interpretation of INA § 106(a) that both (1) permits the filing of a motion for reconsideration to toll the time for petitioning for judicial review (when no petition for review has yet been filed), and (2) permits court review that has already "vested" in the court of appeals to continue there (when the petition for review was filed prior to the filing of the motion for reconsideration). This interpretation simply requires us to read the language of the INA as this Court read the Hobbs Act in Locomotive Engineers. It would avoid creating any "Hobson's choice" for the alien, cf. ante, at 398-399, for an alien could both appeal (thereby obtaining an automatic stay of deportation, INA § 106(a)(3), 8 U.S. C. § 1105a(a)(3)), and then also petition for reconsideration. And, it would avoid entrapping the unwary lawyer who did not immediately file a petition for court review, thinking that a reconsideration petition would toll the appeal time limit as it does in other agency/court contexts. *416 This approach does not undermine Congress' goal of expediting the deportation-order review process. Although the court of appeals might postpone decision of an appeal pending the agency's decision on a later filed motion to reopen or reconsider, it need not do so. If the motion is frivolous, or made for purposes of delay, the INS can call that fact to the court's attention. And, of course, the agency can simply decide the motion quickly. The alien could prevent the court of appeals from acting by not filing an appeal from the original order, but, instead (as here) simply filing a reconsideration motion. That motion would toll the time for taking an appeal. But, the fact that the alien would lose the benefit of the automatic stay would act as a check on aliens filing frivolous reconsideration motions (without filing an appeal) solely for purposes of delay. The majority, and the parties, compare and contrast the tolling and nontolling rules in various court-efficiency and delay-related aspects. But, on balance, these considerations do not argue strongly for one side or the other. When Congress amended the INA in 1990 (adding, among other things, the consolidation subsection) it did hope to diminish delays. But, the statute explicitly set forth several ways of directly achieving this objective. See, e. g., Immigration Act of 1990, § 545(a), 104 Stat. 5063 (creating INA § 242B(d), 8 U.S. C. § 1252b(d), directing the Attorney General to issue regulations providing for summary dismissal of, and attorney sanctions for, frivolous administrative appeals); § 545(b)(1) (reducing time for petitioning for review from 6 months to 90 days); § 545(d)(1) (directing the Attorney General to issue regulations limiting the number of motions to reopen and to reconsider an alien may file and setting a maximum time period for the filing of such motions); § 545(d)(2) (directing the Attorney General to do the same with respect to the number and timing of administrative appeals). Significantly, the statute did not list an antitolling rule as one of those ways. At the same time, Congress enacted certain *417 measures apparently designed to make the deportationorder review process more efficient. See, e. g., § 545(d)(2) (asking the Attorney General to issue regulations specifying that the administrative appeal of a deportation order must be consolidated with the appeal of all motions to reopen or reconsider that order; providing for the filing of appellate and reply briefs; and identifying the items to be included in the notice of administrative appeal). In light of these last mentioned provisions, the consolidation subsection would seem consistent with Congress' purposes in 1990 even without an implicit no-tolling rule. Indeed, the Attorney General has construed one of these last mentioned 1990 amendments as authorizing, in a somewhat analogous situation, a tolling provision roughly similar to that in Locomotive Engineers. In § 545(d)(2) of the 1990 Act, Congress asked the Attorney General to issue regulations with respect to "the consolidation of motions to reopen or to reconsider [an Immigration Judge's deportation order] with the appeal [to the BIA] of [that] order." 104 Stat. 5066 (emphasis added). In response, the Attorney General has proposed a regulation saying, among other things, that "[a] motion to reopen a decision rendered by an Immigration Judge . . . that is pending when an appeal [to the BIA] is filed. . . shall be deemed a motion to remand [the administrative appeal] for further proceedings before the Immigration Judge . . . . Such motion . . . shall be consolidated with, and considered by the Board [later] in connection with, the appeal to the Board . . . ." 59 Fed. Reg. 29386, 29388 (1994) (proposed new 8 CFR § 3.2(c)(4)). See also 59 Fed. Reg., at 29387 (proposed new § 3.2(b) (parallel provision for motions to reconsider)). This approach, which is comparable to the Locomotive Engineers tolling rule, would govern the interaction of administrative appeals and motions to reopen the decision of an Immigration Judge. It seems logical that Congress might want the same rule to govern the analogous situation concerning the interaction of petitions for judicial *418 review and motions to reconsider or reopen a decision of the BIA. One final point. The INS argues that the Court should defer to one of its regulations, 8 CFR § 243.1 (1994), which, it says, interprets INA § 106(a) as eliminating the tolling rule. See, e. g., Shalala v. Guernsey Memorial Hospital, ante, at 94-95; Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). The regulation in question, however, says nothing about tolling. To the contrary, it simply defines "final order of deportation," using language very similar to the language this Court, in Locomotive Engineers, interpreted as embodying the tolling rule. Compare the regulation here at issue, 8 CFR § 243.1 (1994) ("[A]n order of deportation . . . shall become final upon [the BIA's] dismissal of an appeal" from the order of a single immigration judge), with the language at issue in Locomotive Engineers, 49 U.S. C. § 10327(i) ("[A]n action of the [Interstate Commerce] Commission . . . is final on the date on which it is served"). A lawyer reading the regulation simply would not realize that the INS intended to create an unmentioned exception to a critically important technical procedure. Moreover, the INS itself has apparently interpreted the regulation somewhat differently at different times. Compare Brief for Respondent 13-17 (arguing that the regulation embodies a no-tolling rule) with Chu v. INS, 875 F.2d 777, 779 (CA9 1989) (in which INS argued that a reconsideration motion makes the initial order nonfinal, and thereby implies tolling). See, e. g., Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 514-515 (1994) (inconsistent interpretation entitled to "considerably less deference" than consistently held agency view). For these reasons, I do not accept the INS' claim that its silent regulation creates a "no tolling" rule. I would reverse the judgment of the Court of Appeals

The majority reads 106(a) of the Immigration and Nationality Act (INA), 8 U.S. C. 1105a(a) ( ed., Supp. V), as creating an exception to the ordinary legal rules that govern the interaction of (1) motions for agency reconsideration with (2) time limits for appeals. In my view, the statute does not create such an exception. And, reading it to do so risks unnecessary complexity in the technical, but important, matter of how one petitions a court for judicial review of an adverse agency decision. For these reasons, I dissent. This Court, in considered the interaction between reconsideration motions and appeal time limits when one wants to petition a court of appeals to review an adverse of an administrative agency (which I shall call an "agency/court" appeal). The Court held that this interaction resembled that which takes place between (1) an appeal from a district court to a court of appeals (which I shall call a "court/court" appeal) and (2) certain motions for district court reconsideration, namely, those filed soon after entry of the district court See Fed. Rule App. Proc. 4(a)(4). The relevant statute (commonly called the Hobbs Act) said that a petition for review of a final agency order may be filed in the court *407 of appeals "within 60 days after its entry." 28 U.S. C. 2344. The Court concluded, on the basis of precedent, that the filing of a proper petition for reconsideration, "within the period allotted for judicial review of the original order tolls the period for judicial review of the original order." That order can "be appealed to the courts. after the petition for reconsideration is denied." See In my view, we should interpret the INA as calling for tolling, just as we interpreted the Hobbs Act in Locomotive Engineers. For one thing, the appeals time limit language in the INA is similar to that in the Hobbs Act. Like the Hobbs Act, the INA does not mention tolling explicitly; it simply says that "a petition for review may be filed not later than 90 days after the date of the issuance of the final deportation order." INA 106(a)(1), 8 U.S. C. 1105a(a)(1) ( ed., Supp. V). More importantly, the INA explicitly states that the "procedure prescribed by, and all the provisions of [the Hobbs Act, 28 U.S. C. 2341 et seq., ] shall apply to, and shall be the sole and exclusive procedure for, the judicial review of all final orders of deportation." INA 106(a), 8 U.S. C. 1105a(a). This statutory phrase is not conclusive because it is followed by several exceptions, one of which is the subsection setting the "[t]ime for filing [a] petition" for review. INA 106(a)(1), 8 U.S. C. 1105a(a)(1). But, the context suggests that the reason for calling the latter clause an exception lies in the number of days permitted for filing— 90 in the INA, as opposed to 60 in the Hobbs Act. Nothing in the language of 106(a) (which was amended three years after Locomotive Engineers, see Immigration Act of 1990, 545(b), ) suggests any further exception in respect to tolling. Finally, interpreting the INA and the Hobbs Act consistently makes it easier for the bar to understand, and to follow, these highly technical rules. With consistent rules, a nonimmigration-specialist lawyer (say, a lawyer used to working *408 in the ordinary agency/court context) who seeks reconsideration of a Board of Immigration Appeals (BIA) decision is less likely to lose his client's right to appeal simply through inadvertence. The majority reaches a different conclusion because it believes that one subsection of the INA, 106(a)(6), is inconsistent with the ordinary Locomotive Engineers tolling rule. That subsection says that "whenever a petitioner seeks [(1)] review of [a final deportation] order any [(2)] review sought with respect to a motion to reopen or reconsider such an order shall be consolidated with the review of the order." 8 U.S. C. 1105a(a)(6) ( ed., Supp. V). This "consolidation" subsection, however, says nothing about tolling. Indeed, it does not address, even in a general way, the timing of petitions for judicial review; it just says what must happen when two reviews make it separately to the court of appeals and are on the court's docket at the same time (i. e., they must be consolidated). And, the legislative history is likewise silent on the matter. See, e. g., H. R. Conf. Rep. No. 101-955, pp. 132-133 (1990). Given that 106(a)(6) was enacted only three years after Locomotive Engineers, it seems unlikely that Congress consciously created a significantly different approach to the reviewdeadline/reconsideration-petition problem (with the consequent risk of confusing lawyers) in so indirect a manner. Nevertheless, the majority believes this subsection is inconsistent with the ordinary Locomotive Engineers tolling rule because application of the ordinary tolling rule would normally lead an alien to appeal both (1) the original deportation order and (2) a denial of agency reconsideration, in a single petition, after the denial takes place. Thus, in the majority's view, one could never find (1) a petition to review an original deportation order and (2) a petition to review a denial of a motion to reconsider that order, properly together *409 in the court of appeals at the same time. And, for that reason, there would be nothing to "consolidate" under the statute. An opposite rule (one which denies tolling) would, in the majority's view, sometimes produce (simultaneously) both (1) an initial appeal from the original order and (2) an appeal from a denial of reconsideration (if the reconsideration motion were decided, and the second appeal taken, before the court could decide the initial appeal). The "notolling" rule would therefore sometimes produce two appeals, ready for consolidation. The majority concludes that it must infer this "no-tolling" rule in order to give the "consolidation" subsection some work to do and thereby make it legally meaningful. I do not believe it necessary, however, to create a special exception from the ordinary Locomotive Engineers tolling rule in order to make the "consolidation" subsection meaningful, for even under that ordinary tolling rule, the "consolidation" subsection will have work to do. Consider the following case: The BIA enters a final deportation order on Day Zero. The alien files a timely petition for review in a court of appeals on Day 50. Circumstances suddenly change—say, in the alien's home country—and on Day 70 the alien then files a motion to reopen with the agency. (The majority says such a filing "must be" a "rare" happening, ante, at 404, but I do not see why. New circumstances justifying reopening or reconsideration might arise at any time. Indeed, this situation must arise with some frequency, since INS regulations expressly recognize that a motion to reopen or reconsider may be filed after judicial review has been sought. See, e. g., 8 CFR 3.8(a)) The agency denies the reconsideration motion on Day 100. The alien then appeals that denial on Day 110. In this case, the court of appeals would have before it two appeals: the appeal filed on Day 50 and the appeal filed on *. The "consolidation" subsection tells the court of appeals to consolidate those two appeals and decide them together.) In this example, the subsection would have meaning as an "exception" to the Hobbs Act, cf. ante, at 404-405, since nothing in the Hobbs Act requires the consolidation of court reviews. The majority understands this counterexample, but rejects it, for fear of creating both a conceptual and a precedential problem. Neither of those perceived problems, however, is significant. The conceptual problem the majority fears arises out of the fact that, under the ordinary tolling rule, the filing of a petition for reconsideration is deemed to render an otherwise "final" initial (but not-yet-appealed) order "nonfinal" for purposes of court review. Hence, one may not appeal the merits of that initial order until the district court or agency finally decides the reconsideration petition. The majority believes that the reconsideration petition in the counterexample above (a petition filed after an appeal is taken from the initial order) renders "nonfinal," and hence not properly appealable, the initial order, removing the initial appeal from the court of appeals, and thereby leaving nothing to consolidate. The answer to this conceptual argument lies in the "general principle" that "jurisdiction, once vested, is not divested, although a state of things should arrive in which original jurisdiction could not be exercised." United (No. 15,6) (CC Va. 1818) (Marshall, C. J., Circuit Justice), quoted in Republic Nat. Bank of The first appeal, as of Day 50, has reached the court of appeals. Thus, conceptually speaking, one should not consider a later filed motion for reconsideration as having "divested" the court of jurisdiction. And, practically speaking, it makes sense to leave the appeal there, permitting the court of appeals to decide it, or to delay it, as circumstances dictate (say, depending upon the extent to which effort and resources already have been expended in prosecuting and deciding the appeal). After all, we have long recognized that courts have inherent power to stay proceedings and "to control the disposition of the causes on its docket with economy of time and effort for itself, for counsel, and for litigants." ; cf. 28 U.S. C. 1367(c)(3) ( ed., Supp. V) (providing that district court may, but need not, decline to exercise supplemental jurisdiction over a claim when it has dismissed all claims over which it has original jurisdiction). The precedential problem, in the majority's view, arises out of (1) a court/court case in which this Court held that the filing of a reconsideration motion under Federal Rule of Civil Procedure 59 caused an earlier filed notice of appeal to "`self-destruc[t],' " despite the fact that the earlier-filed notice had "vested" the Court of Appeals with "jurisdiction." Were the same principle to apply in the agency/court context, then the reconsideration motion filed on Day 70 would cause the earlier filed petition for review, filed on Day 50, to "self-destruct," leaving nothing for the court of appeals to consolidate with an eventual appeal from an agency denial of a reconsideration motion (on Day 100). Griggs, however, does not apply in the agency/court context. This Court explicitly rested its decision in Griggs upon the fact that a specific Federal Rule of Appellate Procedure, *4 Rule 4(a)(4), provides for the "self-destruction." That Rule says that upon the filing of, say, a Rule 59 motion to amend a district court a "notice of appeal filed before the disposition of [e. g., that Rule 59 motion] shall have no effect." By its terms, Rule 4(a)(4) applies only in the court/court context; and, to my knowledge, there is no comparable provision applicable in agency/court contexts such as this one. In the absence of such a provision, Griggs explicitly adds that the "district courts and courts of appeals would both have had the power to modify the same " —as I believe the agency and the Court of Appeals have here. I recognize that at least one Court of Appeals has adopted an agency/court rule analogous to the "self-destruct" rule set forth in Rule 4(a)(4). ; see But see 1 ; That court's conclusion, however, was based upon a single observation: that "[t]he danger of wasted judicial effort that attends the simultaneous exercise of judicial and agency jurisdiction arises whether a party seeks agency reconsideration before, simultaneous with, or after filing an appeal." at (referring to the danger that the agency's ruling might change the order being appealed, thereby mooting the appeal and wasting any appellate effort expended). While this observation is true enough, it does not justify the "self-destruct" rule, because it fails to take into account other important factors, namely, (a) the principle that jurisdiction, once vested, is generally not divested, and (b) the fact that, in some cases (say, when *413 briefing and argument already have been completed in the court of appeals) judicial economy may actually weigh against stripping the court of jurisdiction. On this last point, it is significant that under the Federal Rules, the motions to revise or reopen court s that cause an earlier filed appeal to "self-destruct" must be filed within a few days after the entry of See, e. g., Fed. Rule Civ. Proc. 4(a)(4) (10 days). The agency rules before us, in contrast, permit a motion for reconsideration (or reopening) well after the entry of the agency's final order. See 8 CFR 3.8(a) See e. g., 10 CFR 2.734(a)(1) (1995) This timing difference means that it is less likely in the court/court context than in the agency/court context that "self-destruction" of an earlier filed notice of appeal would interrupt (and therefore waste) a court of appeals review already well underway. Consequently, this Court should not simply assume that the court/court rule applies in the agency/court context. The majority ultimately says we ought not decide whether the "self-destruct" rule applies in the agency/court context. Ante, at 397, 404. But, the decision cannot be avoided. That is because the majority's basic argument—that a tolling rule would deprive the consolidation subsection of meaning—depends upon the assumption that the "self-destruct" rule does apply. And, for the reasons stated above, that assumption is not supported by any statutory or rule-based authority. Because this matter is so complicated, an analogy to the court/court context may help. In that context, in a normal civil case, a losing party has 30 days to file an appeal (60, if the Government is a party). Fed. Rule App. Proc. 4(a)(1). The Rules then distinguish between two kinds of reconsideration motions: those filed within 10 days (including motions for relief from under Federal Rule of Civil Procedure *414 60(b)), which toll the time for appeal, and those filed after 10 days (in the main, other Rule 60(b) motions), which do not toll the time for appeal. See Fed. Rule App. Proc. 4(a)(4). When a party files a motion of the first sort (which I shall call an "immediate" reconsideration motion), a previously filed notice of appeal "self-destructs." When a party files a motion of the second sort (which I shall call a "distant" reconsideration motion), a previously filed notice of appeal remains valid. A complex set of rules creates this system, and lawyers normally refer to those rules in order to understand what they are supposed to do. See Fed. Rule App. Proc. 4(a) (and Rules of Civil Procedure cited therein). Agency reconsideration motions are sometimes like "immediate" court reconsideration motions, filed soon after entry of a final order, but sometimes they are like "distant" reconsideration motions, filed long after entry of a final order. (Petitioner in this case filed his motion 35 days after entry of an order that he had 90 days to appeal.) The problem before us is that we lack precise rules, comparable to the Federal Rules of Appellate and Civil Procedure, that distinguish (for appeal preserving purposes) between the "immediate" and the "distant" reconsideration motion. We therefore must read an immigration statute, silent on these matters, in one of three possible ways: (1) as creating rules that make Federal Rules-type distinctions; (2) in effect, as analogizing an agency reconsideration motion to the "distant" court reconsideration motion (and denying tolling); or (3) in effect, as analogizing an agency reconsideration motion to the "immediate" court reconsideration motion (and permitting tolling). The first possibility is a matter for the appropriate Rules Committees, not this Court. Those bodies can focus directly upon the interaction of reconsideration motions and appellate time limits; they can consider relevant similarities and differences between agency/court and court/court appeals; and they can consider the relevance of special, immigrationrelated *415 circumstances, such as the fact that the filing of a petition for review from a "final" deportation order automatically stays deportation, INA 106(a)(3), 8 U.S. C. 1105a(a)(3) ( ed., Supp. V). The second possibility (that adopted by the majority) creates a serious risk of unfair loss of a right to appeal, because it is inconsistent with Locomotive Engineers (thereby multiplying complexity). And, it has no basis in the INA, which generally incorporates the procedures of the Hobbs Act and the text and history of which simply do not purport to make an exception denying tolling. The third possibility, in my view, is the best of the three, for it promotes uniformity in practice among the agencies; it is consistent with the Hobbs Act, whose procedures the INA generally adopts; and it thereby helps to avoid inadvertent or unfair loss of the right to appeal. The upshot is that Locomotive Engineers, Griggs, the language of the immigration statute before us, the language of the Federal Rules, and various practical considerations together argue for an interpretation of INA 106(a) that both (1) permits the filing of a motion for reconsideration to toll the time for petitioning for judicial review (when no petition for review has yet been filed), and (2) permits court review that has already "vested" in the court of appeals to continue there (when the petition for review was filed prior to the filing of the motion for reconsideration). This interpretation simply requires us to read the language of the INA as this Court read the Hobbs Act in Locomotive Engineers. It would avoid creating any "Hobson's choice" for the alien, cf. ante, at 398-399, for an alien could both appeal (thereby obtaining an automatic stay of deportation, INA 106(a)(3), 8 U.S. C. 1105a(a)(3)), and then petition for reconsideration. And, it would avoid entrapping the unwary lawyer who did not immediately file a petition for court review, thinking that a reconsideration petition would toll the appeal time limit as it does in other agency/court contexts. *416 This approach does not undermine Congress' goal of expediting the deportation-order review process. Although the court of appeals might postpone decision of an appeal pending the agency's decision on a later filed motion to reopen or reconsider, it need not do so. If the motion is frivolous, or made for purposes of delay, the INS can call that fact to the court's attention. And, of course, the agency can simply decide the motion quickly. The alien could prevent the court of appeals from acting by not filing an appeal from the original order, but, instead (as here) simply filing a reconsideration motion. That motion would toll the time for taking an appeal. But, the fact that the alien would lose the benefit of the automatic stay would act as a check on aliens filing frivolous reconsideration motions (without filing an appeal) solely for purposes of delay. The majority, and the parties, compare and contrast the tolling and nontolling rules in various court-efficiency and delay-related aspects. But, on balance, these considerations do not argue strongly for one side or the other. When Congress amended the INA in 1990 (adding, among other things, the consolidation subsection) it did hope to diminish delays. But, the statute explicitly set forth several ways of directly achieving this objective. See, e. g., Immigration Act of 1990, 545(a), (creating INA 242B(d), 8 U.S. C. 52b(d), directing the Attorney General to issue regulations providing for summary dismissal of, and attorney sanctions for, frivolous administrative appeals); 545(b)(1) (reducing time for petitioning for review from 6 months to 90 days); 545(d)(1) (directing the Attorney General to issue regulations limiting the number of motions to reopen and to reconsider an alien may file and setting a maximum time period for the filing of such motions); 545(d)(2) (directing the Attorney General to do the same with respect to the number and timing of administrative appeals). Significantly, the statute did not list an antitolling rule as one of those ways. At the same time, Congress enacted certain *417 measures apparently designed to make the deportationorder review process more efficient. See, e. g., 545(d)(2) (asking the Attorney General to issue regulations specifying that the administrative appeal of a deportation order must be consolidated with the appeal of all motions to reopen or reconsider that order; providing for the filing of appellate and reply briefs; and identifying the items to be included in the notice of administrative appeal). In light of these last mentioned provisions, the consolidation subsection would seem consistent with Congress' purposes in 1990 even without an implicit no-tolling rule. Indeed, the Attorney General has construed one of these last mentioned 1990 amendments as authorizing, in a somewhat analogous situation, a tolling provision roughly similar to that in Locomotive Engineers. In 545(d)(2) of the 1990 Act, Congress asked the Attorney General to issue regulations with respect to "the consolidation of motions to reopen or to reconsider [an Immigration Judge's deportation order] with the appeal [to the BIA] of [that] order." In response, the Attorney General has proposed a regulation saying, among other things, that "[a] motion to reopen a decision rendered by an Immigration Judge that is pending when an appeal [to the BIA] is filed. shall be deemed a motion to remand [the administrative appeal] for further proceedings before the Immigration Judge Such motion shall be consolidated with, and considered by the Board [later] in connection with, the appeal to the Board" 29388 (proposed new 8 CFR 3.2(c)(4)). See (proposed new 3.2(b) (parallel provision for motions to reconsider)). This approach, which is comparable to the Locomotive Engineers tolling rule, would govern the interaction of administrative appeals and motions to reopen the decision of an Immigration Judge. It seems logical that Congress might want the same rule to govern the analogous situation concerning the interaction of petitions for judicial *418 review and motions to reconsider or reopen a decision of the BIA. One final point. The INS argues that the Court should defer to one of its regulations, 8 CFR 243.1 which, it says, interprets INA 106(a) as eliminating the tolling rule. See, e. g., Shalala v. Guernsey Memorial Hospital, ante, at 94-95; Chevron U. S. A. The regulation in question, however, says nothing about tolling. To the contrary, it simply defines "final order of deportation," using language very similar to the language this Court, in Locomotive Engineers, interpreted as embodying the tolling rule. Compare the regulation here at issue, 8 CFR 243.1 with the language at issue in Locomotive Engineers, 49 U.S. C. 10327(i) ("[A]n action of the [Interstate Commerce] Commission is final on the date on which it is served"). A lawyer reading the regulation simply would not realize that the INS intended to create an unmentioned exception to a critically important technical procedure. Moreover, the INS itself has apparently interpreted the regulation somewhat differently at different times. Compare Brief for Respondent 13-17 (arguing that the regulation embodies a no-tolling rule) with (CA9 19) See, e. g., Thomas Jefferson 5 U.S. 504, For these reasons, I do not accept the INS' claim that its silent regulation creates a "no tolling" rule. I would reverse the of the Court of Appeals

Justice Scalia

majority

Asgrow Seed Co. v. Winterboer

1995-01-18

https://www.courtlistener.com/opinion/117888/asgrow-seed-co-v-winterboer/

https://www.courtlistener.com/api/rest/v3/clusters/117888/

1994-013

The Plant Variety Protection Act of 1970, 7 U.S. C. § 2321 et seq., protects owners of novel seed varieties against unauthorized sales of their seed for replanting purposes. An exemption, however, allows farmers to make some sales of protected variety seed to other farmers. This case raises the question whether there is a limit to the quantity of protected seed that a farmer can sell under this exemption. I In 1970, Congress passed the Plant Variety Protection Act (PVPA), 84 Stat. 1542, 7 U.S. C. § 2321 et seq., in order to provide developers of novel plant varieties with "adequate encouragement for research, and for marketing when appropriate, to yield for the public the benefits of new varieties," § 2581. The PVPA extends patent-like protection to novel varieties of sexually reproduced plants (that is, plants grown from seed) which parallels the protection afforded asexually reproduced plant varieties (that is, varieties reproduced by propagation or grafting) under Chapter 15 of the Patent Act. See 35 U.S. C. §§ 161-164. The developer of a novel variety obtains PVPA coverage by acquiring a certificate of protection from the Plant Variety Protection Office. See 7 U.S. C. §§ 2421, 2422, 2481— 2483. This confers on the owner the exclusive right for 18 years to "exclude others from selling the variety, or offering it for sale, or reproducing it, or importing it, or exporting it, or using it in producing (as distinguished from developing) a hybrid or different variety therefrom." § 2483. Petitioner, Asgrow Seed Company, is the holder of PVPA certificates protecting two novel varieties of soybean seed, which it calls A1937 and A2234. Respondents, Dennis and Becky Winterboer, are Iowa farmers whose farm spans 800 acres of Clay County, in the northwest corner of the *182 State. The Winterboers have incorporated under the name "D-Double-U Corporation" and do business under the name "DeeBee's Feed and Seed." In addition to growing crops for sale as food and livestock feed, since 1987 the Winterboers have derived a sizable portion of their income from "brown-bag" sales of their crops to other farmers to use as seed. A brown-bag sale occurs when a farmer purchases seed from a seed company, such as Asgrow, plants the seed in his own fields, harvests the crop, cleans it, and then sells the reproduced seed to other farmers (usually in nondescript brown bags) for them to plant as crop seed on their own farms. During 1990, the Winterboers planted 265 acres of A1937 and A2234, and sold the entire salable crop, 10,529 bushels, to others for use as seed—enough to plant 10,000 acres. The average sale price was $8.70 per bushel, compared with a then-current price of $16.20 to $16.80 per bushel to obtain varieties A1937 and A2234 directly from Asgrow. Concerned that the Winterboers were making a business out of selling its protected seed, Asgrow sent a local farmer, Robert Ness, to the Winterboer farm to make a purchase. Mr. Winterboer informed Ness that he could sell him soybean seed that was "just like" Asgrow varieties A1937 and A2234. Ness purchased 20 bags of each; a plant biologist for Asgrow tested the seeds and determined that they were indeed A1937 and A2234. Asgrow brought suit against the Winterboers in the Federal District Court for the Northern District of Iowa, seeking damages and a permanent injunction against sale of seed harvested from crops grown from A1937 and A2234. The complaint alleged infringement under 7 U.S. C. § 2541(1), for selling or offering to sell Asgrow's protected soybean varieties; under § 2541(3), for sexually multiplying Asgrow's novel varieties as a step in marketing those varieties for growing purposes; and under § 2541(6), for dispensing the novel varieties *183 to others in a form that could be propagated without providing notice that the seeds were of a protected variety.[1] The Winterboers did not deny that Asgrow held valid certificates of protection covering A1937 and A2234, and that they had sold seed produced from those varieties for others to use as seed. Their defense, at least to the §§ 2541(1) and *184 (3) charges, rested upon the contention that their sales fell within the statutory exemption from infringement liability found in 7 U.S. C. § 2543. That section, entitled "Right to save seed; crop exemption," reads in relevant part as follows: "Except to the extent that such action may constitute an infringement under subsections (3) and (4) of section 2541 of this title, it shall not infringe any right hereunder for a person to save seed produced by him from seed obtained, or descended from seed obtained, by authority of the owner of the variety for seeding purposes and use such saved seed in the production of a crop for use on his farm, or for sale as provided in this section: Pro- vided, That without regard to the provisions of section 2541(3) of this title it shall not infringe any right hereunder for a person, whose primary farming occupation is the growing of crops for sale for other than reproductive purposes, to sell such saved seed to other persons so engaged, for reproductive purposes, provided such sale is in compliance with such State laws governing the sale of seed as may be applicable. A bona fide sale for other than reproductive purposes, made in channels usual for such other purposes, of seed produced on a farm either from seed obtained by authority of the owner for seeding purposes or from seed produced by descent on such farm from seed obtained by authority of the owner for seeding purposes shall not constitute an infringement. . . ."[2] *185 The Winterboers argued that this language gave them the right to sell an unlimited amount of seed produced from a protected variety, subject only to the conditions that both buyer and seller be farmers "whose primary farming occupation is the growing of crops for sale for other than reproductive purposes," and that all sales comply with state law. Asgrow maintained that the exemption allows a farmer to save and resell to other farmers only the amount of seed the seller would need to replant his own fields—a limitation that the Winterboers' sales greatly exceeded. The District Court agreed with Asgrow and granted summary judgment in its favor. 795 F. Supp. 915 (1991). The United States Court of Appeals for the Federal Circuit reversed. 982 F.2d 486 (1992). Although "recogniz[ing] that, without meaningful limitations, the crop exemption [of § 2543] could undercut much of the PVPA's incentives," id., at 491, the Court of Appeals saw nothing in § 2543 that would limit the sale of protected seed (for reproductive purposes) to the amount necessary to plant the seller's own acreage. Rather, as the Court of Appeals read the statute, § 2543 permits a farmer to sell up to half of every crop he produces from PVPA-protected seed to another farmer for use as seed, so long as he sells the other 50 percent of the crop grown from that specific variety for nonreproductive purposes, e. g., for food or feed. The Federal Circuit denied Asgrow's petition for rehearing and suggestion for rehearing en banc by a vote of six judges to five. 989 F.2d 478 (1993). We granted certiorari. 511 U.S. 1029 (1994). II It may be well to acknowledge at the outset that it is quite impossible to make complete sense of the provision at issue *186 here. One need go no further than the very first words of its title to establish that. Section 2543 does not, as that title claims and the ensuing text says, reserve any "[r]ight to save seed"—since nothing elsewhere in the Act remotely prohibits the saving of seed. Nor, under any possible analysis, is the proviso in the first sentence of § 2543 ("Provided, That") really a proviso. With this advance warning that not all mysteries will be solved, we enter the verbal maze of § 2543. The entrance, we discover, is actually an exit, since the provision begins by excepting certain activities from its operation: "Except to the extent that such action may constitute an infringement under subsections (3) and (4) of section 2541 of this title, it shall not infringe any right hereunder for a person to save seed produced by him . . . and use such saved seed in the production of a crop for use on his farm, or for sale as provided in this section . . . ." (Emphasis added.) Thus, a farmer does not qualify for the exemption from infringement liability if he has "(3) sexually multipl[ied] the novel variety as a step in marketing (for growing purposes) the variety; or (4) use[d] the novel variety in producing (as distinguished from developing) a hybrid or different variety therefrom." 7 U.S. C. §§ 2541(3)—(4). In 1990, the Winterboers planted 265 acres of Asgrow protected variety seed and collected a harvest of 12,037 bushels of soybeans. The parties do not dispute that this act of planting and harvesting constituted "sexual multiplication" of the novel varieties. See 7 U.S. C. § 2401(f) (defining "sexually reproduced" seed to include "any production of a variety by seed"). The Winterboers sold almost all of these beans for use as seed (i. e., "for growing purposes"), without Asgrow's consent. The central question in this case, then, is whether the Winterboers' planting and harvesting were conducted "as a step in marketing" Asgrow's protected seed *187 varieties for growing purposes. If they were, the Winterboers were not eligible for the § 2543 exemption, and the District Court was right to grant summary judgment to Asgrow. The PVPA does not define "marketing." When terms used in a statute are undefined, we give them their ordinary meaning. FDIC v. Meyer, 510 U.S. 471, 476 (1994). The Federal Circuit believed that the word "marketing" requires "extensive or coordinated selling activities, such as advertising, using an intervening sales representative, or similar extended merchandising or retail activities." 982 F.2d, at 492. We disagree. Marketing ordinarily refers to the act of holding forth property for sale, together with the activities preparatory thereto (in the present case, cleaning, drying, bagging, and pricing the seeds). The word does not require that the promotional or merchandising activities connected with the selling be extensive. One can market apples by simply displaying them on a cart with a price tag; or market a stock by simply listing it on a stock exchange; or market a house (we would normally say "place it on the market") by simply setting a "for sale" sign on the front lawn. Indeed, some dictionaries give as one meaning of "market" simply "to sell." See, e. g., Oxford Universal Dictionary 1208 (3d ed. 1955); Webster's New International Dictionary 1504 (2d ed. 1950). Of course, effective selling often involves extensive promotional activities, and when they occur they are all part of the "marketing." But even when the holding forth for sale relies upon no more than word-of-mouth advertising, a marketing of goods is in process. Moreover, even if the word "marketing" could, in one of its meanings, demand extensive promotion, we see no reason why the law at issue here would intend that meaning. That would have the effect of preserving PVPA protection for less valuable plant varieties, but eliminating it for varieties so desirable that they can be marketed by word of mouth; as well as the effect of requiring courts to ponder the difficult question of how much promotion is necessary to constitute marketing. We *188 think that when the statute refers to sexually multiplying a variety "as a step in marketing," it means growing seed of the variety for the purpose of putting the crop up for sale.[3] Under the exception set out in the first clause of § 2543, then, a farmer is not eligible for the § 2543 exemption if he plants and saves seeds for the purpose of selling the seeds that they produce for replanting. Section 2543 next provides that, so long as a person is not violating either §§ 2541(3) or (4), "it shall not infringe any right hereunder for a person to save seed produced by him from seed obtained, or descended from seed obtained, by authority of the owner of the variety for seeding purposes and use such saved seed in the production of a crop for use on his farm, or for sale as provided in this section .. . ." (Emphasis added.) Farmers generally grow crops to sell. A harvested soybean crop is typically removed from the farmer's premises in short order and taken to a grain elevator or processor. Sometimes, however, in the case of a plant such as the soybean, in which the crop is the seed, the farmer will have a portion of his crop cleaned and stored as seed for replanting his fields next season. We think it clear that this seed saved for replanting is what the provision under discussion means by *189 "saved seed"—not merely regular uncleaned crop that is stored for later market sale or use as fodder. There are two ways to read the provision, depending upon which words the phrase "for sale as provided in this section" is taken to modify. It can be read "production of a crop . . . for sale as provided in this section"; or alternatively "use such saved seed . .. for sale as provided in this section." The parallelism created by the phrase "for use on his farm" followed immediately by "or for sale as provided in this section" suggests the former reading. But the placement of the comma, separating "use [of] such saved seed in the production of a crop for use on his farm," from "or for sale," favors the latter reading. So does the fact that the alternative reading requires the reader to skip the lengthy "Provided, That" clause in order to find out what sales are "provided [for] in this section"—despite the parallelism between "provided" and "Provided, " and despite the presence of a colon, which ordinarily indicates specification of what has preceded. It is surely easier to think that at least some of the sales "provided for" are those that are "Provided" after the colon. (It is, of course, not unusual, however deplorable it may be, for "Provided, That" to be used as prologue to an addition rather than an exception. See Springer v. Philippine Islands, 277 U.S. 189, 206 (1928); 1A N. Singer, Sutherland on Statutory Construction § 20.22 (5th ed. 1992).) We think the latter reading is also to be preferred because it lends greater meaning to all the provisions. Under the former reading ("production of a crop . . . for sale as provided in this section"), the only later text that could be referred to is the provision for "bona fide sale[s] for other than reproductive purposes" set out in the second sentence of § 2543—the so-called "crop exemption." (The proviso could not be referred to, since it does not provide for sale of crops grown from saved seed, but only for sale of saved seed itself.) But if the "or for sale" provision has such a limited referent, the opening clause's ("Except to the extent that . . .") reservation *190 of § 2541(3) infringement liability (i. e., liability for growing as a step in marketing for reproductive purposes) would be devoid of content, since the provision to which it is attached would permit no sales for reproductive purposes. Under the latter reading, by contrast, the farmer may not "use [his] saved seed . . . for sale" as the proviso allows if the seed was intentionally grown for the purpose of such sale—i. e., "sexually multipl[ied] . . . as a step in marketing (for growing purposes) the variety."[4] A second respect in which our favored reading gives greater meaning to the provision is this: The other reading ("crop . . . for sale as provided in this section") causes the "permission" given in the opening sentence to extend only to sales for nonreproductive purposes of the crops grown from saved seed, as opposed to sales of the saved seed itself. But no separate permission would have been required for this, since it is already contained within the crop exemption itself; it serves only as a reminder that crop from saved seed can be sold under that exemption—a peculiarly incomplete reminder, since the saved seed itself can also be sold under that exemption. To summarize: By reason of its proviso the first sentence of § 2543 allows seed that has been preserved for reproductive purposes ("saved seed") to be sold for such purposes. The structure of the sentence is such, however, that this authorization does not extend to saved seed that was grown for the very purpose of sale ("marketing") for replanting—because in that case, § 2541(3) would be violated, and the abovediscussed *191 exception to the exemption would apply. As a practical matter, since § 2541(1) prohibits all unauthorized transfer of title to, or possession of, the protected variety, this means that the only seed that can be sold under the proviso is seed that has been saved by the farmer to replant his own acreage.[5] (We think that limitation is also apparent from the text of the crop exemption, which permits a farm crop from saved seeds to be sold—for nonreproductive purposes—only if those saved seeds were "produced by descent on such farm. " (Emphasis added.) It is in our view the proviso in § 2543, and not the crop exemption, that authorizes the permitted buyers of saved seeds to sell the crops they produce.) Thus, if a farmer saves seeds to replant his acreage, but for some reason changes his plans, he may instead sell those seeds for replanting under the terms set forth in the proviso (or of course sell them for nonreproductive purposes under the crop exemption). It remains to discuss one final feature of the proviso authorizing limited sales for reproductive purposes. The proviso allows sales of saved seed for replanting purposes only between persons "whose primary farming occupation is the growing of crops for sale for other than reproductive purposes." The Federal Circuit, which rejected the proposition *192 that the only seed sellable under the exemption is seed saved for the farmer's own replanting, sought to achieve some limitation upon the quantity of seed that can be sold for reproductive purposes by adopting a "crop-by-crop" approach to the "primary farming occupation" requirement of the proviso. "[B]uyers or sellers of brown bag seed qualify for the crop exemption," it concluded, "only if they produce a larger crop from a protected seed for consumption (or other nonreproductive purposes) than for sale as seed." 982 F.2d, at 490. That is to say, the brown-bag seller can sell no more than half of his protected crop for seed. The words of the statute, however, stand in the way of this creative (if somewhat insubstantial) limitation. To ask what is a farmer's "primary farming occupation" is to ask what constitutes the bulk of his total farming business. Selling crops for other than reproductive purposes must constitute the preponderance of the farmer's business, not just the preponderance of his business in the protected seed. There is simply no way to derive from this text the narrower focus that the Federal Circuit applied. Thus, if the quantity of seed that can be sold is not limited as we have described—by reference to the original purpose for which the seed is saved—then it is barely limited at all (i. e., limited only by the volume or worth of the selling farmer's total crop sales for other than reproductive purposes). This seems to us a most unlikely result. * * * We hold that a farmer who meets the requirements set forth in the proviso to § 2543 may sell for reproductive purposes only such seed as he has saved for the purpose of replanting his own acreage. While the meaning of the text is by no means clear, this is in our view the only reading that comports with the statutory purpose of affording "adequate encouragement for research, and for marketing when appropriate, to yield for the public the benefits of new varieties." 7 U.S. C. § 2581. Because we find the sales here were unlawful, *193 we do not reach the second question on which we granted certiorari—whether sales authorized under § 2543 remain subject to the notice requirement of § 2541(6). The judgment of the Court of Appeals for the Federal Circuit is Reversed.

The Plant Variety Protection Act of 1970, 7 U.S. C. 2321 et seq., protects owners of novel seed varieties against unauthorized sales of their seed for replanting purposes. An exemption, however, allows farmers to make some sales of protected variety seed to other farmers. This case raises the question whether there is a limit to the quantity of protected seed that a farmer can sell under this exemption. I In 1970, Congress passed the Plant Variety Protection Act (PVPA), 7 U.S. C. 2321 et seq., in order to provide developers of novel plant varieties with "adequate encouragement for research, and for marketing when appropriate, to yield for the public the benefits of new varieties," 2581. The PVPA extends patent-like protection to novel varieties of sexually reproduced plants (that is, plants grown from seed) which parallels the protection afforded asexually reproduced plant varieties (that is, varieties reproduced by propagation or grafting) under Chapter 15 of the Patent Act. See 35 U.S. C. 161-164. The developer of a novel variety obtains PVPA coverage by acquiring a certificate of protection from the Plant Variety Protection Office. See 7 U.S. C. 2421, 2422, 2481— 2483. This confers on the owner the exclusive right for 18 years to "exclude others from selling the variety, or offering it for sale, or reproducing it, or importing it, or exporting it, or using it in producing (as distinguished from developing) a hybrid or different variety therefrom." 2483. Petitioner, Asgrow Seed Company, is the holder of PVPA certificates protecting two novel varieties of soybean seed, which it calls A1937 and A2234. Respondents, Dennis and Becky Winterboer, are Iowa farmers whose farm spans 800 acres of Clay County, in the northwest corner of the *182 State. The Winterboers have incorporated under the name "D-Double-U Corporation" and do business under the name "DeeBee's Feed and Seed." In addition to growing crops for sale as food and livestock feed, since 1987 the Winterboers have derived a sizable portion of their income from "brown-bag" sales of their crops to other farmers to use as seed. A brown-bag sale occurs when a farmer purchases seed from a seed company, such as Asgrow, plants the seed in his own fields, harvests the crop, cleans it, and then sells the reproduced seed to other farmers (usually in nondescript brown bags) for them to plant as crop seed on their own farms. During 1990, the Winterboers planted 265 acres of A1937 and A2234, and sold the entire salable crop, 10,529 bushels, to others for use as seed—enough to plant 10,000 acres. The average sale price was $8.70 per bushel, compared with a then-current price of $16.20 to $16.80 per bushel to obtain varieties A1937 and A2234 directly from Asgrow. Concerned that the Winterboers were making a business out of selling its protected seed, Asgrow sent a local farmer, Robert Ness, to the Winterboer farm to make a purchase. Mr. Winterboer informed Ness that he could sell him soybean seed that was "just like" Asgrow varieties A1937 and A2234. Ness purchased 20 bags of each; a plant biologist for Asgrow tested the seeds and determined that they were indeed A1937 and A2234. Asgrow brought suit against the Winterboers in the Federal District Court for the Northern District of Iowa, seeking damages and a permanent injunction against sale of seed harvested from crops grown from A1937 and A2234. The complaint alleged infringement under 7 U.S. C. 2541(1), for selling or offering to sell Asgrow's protected soybean varieties; under 2541(3), for sexually multiplying Asgrow's novel varieties as a step in marketing those varieties for growing purposes; and under 2541(6), for dispensing the novel varieties *183 to others in a form that could be propagated without providing notice that the seeds were of a protected variety.[1] The Winterboers did not deny that Asgrow held valid certificates of protection covering A1937 and A2234, and that they had sold seed produced from those varieties for others to use as seed. Their defense, at least to the 2541(1) and *184 (3) charges, rested upon the contention that their sales fell within the statutory exemption from infringement liability found in 7 U.S. C. 2543. That section, entitled "Right to save seed; crop exemption," reads in relevant part as follows: "Except to the extent that such action may constitute an infringement under subsections (3) and (4) of section 2541 of this title, it shall not infringe any right hereunder for a person to save seed produced by him from seed obtained, or descended from seed obtained, by authority of the owner of the variety for seeding purposes and use such saved seed in the production of a crop for use on his farm, or for sale as provided in this section: Pro- vided, That without regard to the provisions of section 2541(3) of this title it shall not infringe any right hereunder for a person, whose primary farming occupation is the growing of crops for sale for other than reproductive purposes, to sell such saved seed to other persons so engaged, for reproductive purposes, provided such sale is in compliance with such State laws governing the sale of seed as may be applicable. A bona fide sale for other than reproductive purposes, made in channels usual for such other purposes, of seed produced on a farm either from seed obtained by authority of the owner for seeding purposes or from seed produced by descent on such farm from seed obtained by authority of the owner for seeding purposes shall not constitute an infringement."[2] *185 The Winterboers argued that this language gave them the right to sell an unlimited amount of seed produced from a protected variety, subject only to the conditions that both buyer and seller be farmers "whose primary farming occupation is the growing of crops for sale for other than reproductive purposes," and that all sales comply with state law. Asgrow maintained that the exemption allows a farmer to save and resell to other farmers only the amount of seed the seller would need to replant his own fields—a limitation that the Winterboers' sales greatly exceeded. The District Court agreed with Asgrow and granted summary judgment in its favor. The United States Court of Appeals for the Federal Circuit reversed. Although "recogniz[ing] that, without meaningful limitations, the crop exemption [of 2543] could undercut much of the PVPA's incentives," the Court of Appeals saw nothing in 2543 that would limit the sale of protected seed (for reproductive purposes) to the amount necessary to plant the seller's own acreage. Rather, as the Court of Appeals read the statute, 2543 permits a farmer to sell up to half of every crop he produces from PVPA-protected seed to another farmer for use as seed, so long as he sells the other 50 percent of the crop grown from that specific variety for nonreproductive purposes, e. g., for food or feed. The Federal Circuit denied Asgrow's petition for rehearing and suggestion for rehearing en banc by a vote of six judges to five. We granted certiorari. II It may be well to acknowledge at the outset that it is quite impossible to make complete sense of the provision at issue *186 here. One need go no further than the very first words of its title to establish that. Section 2543 does not, as that title claims and the ensuing text says, reserve any "[r]ight to save seed"—since nothing elsewhere in the Act remotely prohibits the saving of seed. Nor, under any possible analysis, is the proviso in the first sentence of 2543 ("Provided, That") really a proviso. With this advance warning that not all mysteries will be solved, we enter the verbal maze of 2543. The entrance, we discover, is actually an exit, since the provision begins by excepting certain activities from its operation: "Except to the extent that such action may constitute an infringement under subsections (3) and (4) of section 2541 of this title, it shall not infringe any right hereunder for a person to save seed produced by him and use such saved seed in the production of a crop for use on his farm, or for sale as provided in this section" (Emphasis added.) Thus, a farmer does not qualify for the exemption from infringement liability if he has "(3) sexually multipl[ied] the novel variety as a step in marketing (for growing purposes) the variety; or (4) use[d] the novel variety in producing (as distinguished from developing) a hybrid or different variety therefrom." 7 U.S. C. 2541(3)—(4). In 1990, the Winterboers planted 265 acres of Asgrow protected variety seed and collected a harvest of 12,037 bushels of soybeans. The parties do not dispute that this act of planting and harvesting constituted "sexual multiplication" of the novel varieties. See 7 U.S. C. 2401(f) (defining "sexually reproduced" seed to include "any production of a variety by seed"). The Winterboers sold almost all of these beans for use as seed (i. e., "for growing purposes"), without Asgrow's consent. The central question in this case, then, is whether the Winterboers' planting and harvesting were conducted "as a step in marketing" Asgrow's protected seed *187 varieties for growing purposes. If they were, the Winterboers were not eligible for the 2543 exemption, and the District Court was right to grant summary judgment to Asgrow. The PVPA does not define "marketing." When terms used in a statute are undefined, we give them their ordinary meaning. The Federal Circuit believed that the word "marketing" requires "extensive or coordinated selling activities, such as advertising, using an intervening sales representative, or similar extended merchandising or retail activities." We disagree. Marketing ordinarily refers to the act of holding forth property for sale, together with the activities preparatory thereto (in the present case, cleaning, drying, bagging, and pricing the seeds). The word does not require that the promotional or merchandising activities connected with the selling be extensive. One can market apples by simply displaying them on a cart with a price tag; or market a stock by simply listing it on a stock exchange; or market a house (we would normally say "place it on the market") by simply setting a "for sale" sign on the front lawn. Indeed, some dictionaries give as one meaning of "market" simply "to sell." See, e. g., Oxford Universal Dictionary 1208 (3d ed. 1955); Webster's New International Dictionary 1504 (2d ed. 1950). Of course, effective selling often involves extensive promotional activities, and when they occur they are all part of the "marketing." But even when the holding forth for sale relies upon no more than word-of-mouth advertising, a marketing of goods is in process. Moreover, even if the word "marketing" could, in one of its meanings, demand extensive promotion, we see no reason why the law at issue here would intend that meaning. That would have the effect of preserving PVPA protection for less valuable plant varieties, but eliminating it for varieties so desirable that they can be marketed by word of mouth; as well as the effect of requiring courts to ponder the difficult question of how much promotion is necessary to constitute marketing. We *188 think that when the statute refers to sexually multiplying a variety "as a step in marketing," it means growing seed of the variety for the purpose of putting the crop up for sale.[3] Under the exception set out in the first clause of 2543, then, a farmer is not eligible for the 2543 exemption if he plants and saves seeds for the purpose of selling the seeds that they produce for replanting. Section 2543 next provides that, so long as a person is not violating either 2541(3) or (4), "it shall not infringe any right hereunder for a person to save seed produced by him from seed obtained, or descended from seed obtained, by authority of the owner of the variety for seeding purposes and use such saved seed in the production of a crop for use on his farm, or for sale as provided in this section" (Emphasis added.) Farmers generally grow crops to sell. A harvested soybean crop is typically removed from the farmer's premises in short order and taken to a grain elevator or processor. Sometimes, however, in the case of a plant such as the soybean, in which the crop is the seed, the farmer will have a portion of his crop cleaned and stored as seed for replanting his fields next season. We think it clear that this seed saved for replanting is what the provision under discussion means by *189 "saved seed"—not merely regular uncleaned crop that is stored for later market sale or use as fodder. There are two ways to read the provision, depending upon which words the phrase "for sale as provided in this section" is taken to modify. It can be read "production of a crop for sale as provided in this section"; or alternatively "use such saved seed for sale as provided in this section." The parallelism created by the phrase "for use on his farm" followed immediately by "or for sale as provided in this section" suggests the former reading. But the placement of the comma, separating "use [of] such saved seed in the production of a crop for use on his farm," from "or for sale," favors the latter reading. So does the fact that the alternative reading requires the reader to skip the lengthy "Provided, That" clause in order to find out what sales are "provided [for] in this section"—despite the parallelism between "provided" and "Provided, " and despite the presence of a colon, which ordinarily indicates specification of what has preceded. It is surely easier to think that at least some of the sales "provided for" are those that are "Provided" after the colon. ; 1A N. Singer, Sutherland on Statutory Construction 20.22) We think the latter reading is also to be preferred because it lends greater meaning to all the provisions. Under the former reading ("production of a crop for sale as provided in this section"), the only later text that could be referred to is the provision for "bona fide sale[s] for other than reproductive purposes" set out in the second sentence of 2543—the so-called "crop exemption." (The proviso could not be referred to, since it does not provide for sale of crops grown from saved seed, but only for sale of saved seed itself.) But if the "or for sale" provision has such a limited referent, the opening clause's ("Except to the extent that") reservation *190 of 2541(3) infringement liability (i. e., liability for growing as a step in marketing for reproductive purposes) would be devoid of content, since the provision to which it is attached would permit no sales for reproductive purposes. Under the latter reading, by contrast, the farmer may not "use [his] saved seed for sale" as the proviso allows if the seed was intentionally grown for the purpose of such sale—i. e., "sexually multipl[ied] as a step in marketing (for growing purposes) the variety."[4] A second respect in which our favored reading gives greater meaning to the provision is this: The other reading ("crop for sale as provided in this section") causes the "permission" given in the opening sentence to extend only to sales for nonreproductive purposes of the crops grown from saved seed, as opposed to sales of the saved seed itself. But no separate permission would have been required for this, since it is already contained within the crop exemption itself; it serves only as a reminder that crop from saved seed can be sold under that exemption—a peculiarly incomplete reminder, since the saved seed itself can also be sold under that exemption. To summarize: By reason of its proviso the first sentence of 2543 allows seed that has been preserved for reproductive purposes ("saved seed") to be sold for such purposes. The structure of the sentence is such, however, that this authorization does not extend to saved seed that was grown for the very purpose of sale ("marketing") for replanting—because in that case, 2541(3) would be violated, and the abovediscussed *191 exception to the exemption would apply. As a practical matter, since 2541(1) prohibits all unauthorized transfer of title to, or possession of, the protected variety, this means that the only seed that can be sold under the proviso is seed that has been saved by the farmer to replant his own acreage.[5] (We think that limitation is also apparent from the text of the crop exemption, which permits a farm crop from saved seeds to be sold—for nonreproductive purposes—only if those saved seeds were "produced by descent on such farm. " (Emphasis added.) It is in our view the proviso in 2543, and not the crop exemption, that authorizes the permitted buyers of saved seeds to sell the crops they produce.) Thus, if a farmer saves seeds to replant his acreage, but for some reason changes his plans, he may instead sell those seeds for replanting under the terms set forth in the proviso (or of course sell them for nonreproductive purposes under the crop exemption). It remains to discuss one final feature of the proviso authorizing limited sales for reproductive purposes. The proviso allows sales of saved seed for replanting purposes only between persons "whose primary farming occupation is the growing of crops for sale for other than reproductive purposes." The Federal Circuit, which rejected the proposition *192 that the only seed sellable under the exemption is seed saved for the farmer's own replanting, sought to achieve some limitation upon the quantity of seed that can be sold for reproductive purposes by adopting a "crop-by-crop" approach to the "primary farming occupation" requirement of the proviso. "[B]uyers or sellers of brown bag seed qualify for the crop exemption," it concluded, "only if they produce a larger crop from a protected seed for consumption (or other nonreproductive purposes) than for sale as seed." That is to say, the brown-bag seller can sell no more than half of his protected crop for seed. The words of the statute, however, stand in the way of this creative (if somewhat insubstantial) limitation. To ask what is a farmer's "primary farming occupation" is to ask what constitutes the bulk of his total farming business. Selling crops for other than reproductive purposes must constitute the preponderance of the farmer's business, not just the preponderance of his business in the protected seed. There is simply no way to derive from this text the narrower focus that the Federal Circuit applied. Thus, if the quantity of seed that can be sold is not limited as we have described—by reference to the original purpose for which the seed is saved—then it is barely limited at all (i. e., limited only by the volume or worth of the selling farmer's total crop sales for other than reproductive purposes). This seems to us a most unlikely result. * * * We hold that a farmer who meets the requirements set forth in the proviso to 2543 may sell for reproductive purposes only such seed as he has saved for the purpose of replanting his own acreage. While the meaning of the text is by no means clear, this is in our view the only reading that comports with the statutory purpose of affording "adequate encouragement for research, and for marketing when appropriate, to yield for the public the benefits of new varieties." 7 U.S. C. 2581. Because we find the sales here were unlawful, *193 we do not reach the second question on which we granted certiorari—whether sales authorized under 2543 remain subject to the notice requirement of 2541(6). The judgment of the Court of Appeals for the Federal Circuit is Reversed.

Justice Stevens

dissenting

Asgrow Seed Co. v. Winterboer

1995-01-18

https://www.courtlistener.com/opinion/117888/asgrow-seed-co-v-winterboer/

https://www.courtlistener.com/api/rest/v3/clusters/117888/

1994-013

The key to this statutory puzzle is the meaning of the phrase, "as a step in marketing," as used in 7 U.S. C. § 2541(a)(3) (1988 ed., Supp. V). If it is synonymous with "for the purpose of selling," as the Court holds, see ante, at 188, then the majority's comprehensive exposition of the statute is correct. I record my dissent only because that phrase conveys a different message to me. There must be a reason why Congress used the word "marketing" rather than the more common term "selling." Indeed, in § 2541(a)(1), contained in the same subsection of the statute as the crucial language, Congress made it an act of infringement to "sell the novel variety." Yet, in § 2541(a)(3), a mere two clauses later, Congress eschewed the word "sell" in favor of "marketing." Because Congress obviously could have prohibited sexual multiplication "as a step in selling," I presume that when it elected to prohibit sexual multiplication only "as a step in marketing (for growing purposes) the variety," Congress meant something different. Moreover, as used in this statute, "marketing" must be narrower, not broader, than selling. The majority is correct that one meaning of "marketing" is the act of selling and all acts preparatory thereto. See ante, at 187. But Congress has prohibited only one preparatory act—that of sexual multiplication—and only when it is a step in marketing. Under the majority's broad definition of "marketing," prohibiting sexual multiplication "as a step in marketing" can be no broader than prohibiting sexual multiplication "as a step in selling," because all steps in marketing are, ultimately, steps *194 in selling. If "marketing" can be no broader than "selling," and if Congress did not intend the two terms to be coextensive, then "marketing" must encompass something less than all "selling." The statute as a whole—and as interpreted by the Court of Appeals—indicates that Congress intended to preserve the farmer's right to engage in so-called "brown-bag sales" of seed to neighboring farmers. Congress limited that right by the express requirement that such sales may not constitute the "primary farming occupation" of either the buyer or the seller. Moreover, § 2541(a)(3) makes it abundantly clear that the unauthorized participation in "marketing" of protected varieties is taboo. If one interprets "marketing" to refer to a subcategory of selling activities, namely, merchandising through farm cooperatives, wholesalers, retailers, or other commercial distributors, the entire statute seems to make sense. I think Congress wanted to allow any ordinary brown-bag sale from one farmer to another; but, as the Court of Appeals concluded, it did not want to permit farmers to compete with seed manufacturers on their own ground, through "extensive or coordinated selling activities, such as advertising, using an intervening sales representative, or similar extended merchandising or retail activities." 982 F.2d 486, 492 (CA Fed. 1992). This reading of the statute is consistent with our timehonored practice of viewing restraints on the alienation of property with disfavor. See, e. g., Sexton v. Wheaton, 8 Wheat. 229, 242 (1823) (opinion of Marshall, C. J.).[*] The seed at issue is part of a crop planted and harvested by a farmer on his own property. Generally the owner of personal *195 property—even a patented or copyrighted article—is free to dispose of that property as he sees fit. See, e. g., United States v. Univis Lens Co., 316 U.S. 241, 250-252 (1942); Bobbs-Merrill Co. v. Straus, 210 U.S. 339, 350-351 (1908). A statutory restraint on this basic freedom should be expressed clearly and unambiguously. Cf. Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518, 530-531 (1972). As the majority recognizes, the meaning of this statute is "by no means clear." Ante, at 192. Accordingly, both because I am persuaded that the Court of Appeals correctly interpreted the intent of Congress, and because doubts should be resolved against purported restraints on freedom, I would affirm the judgment below.

The key to this statutory puzzle is the meaning of the phrase, "as a step in marketing," as used in 7 U.S. C. 2541(a)(3) (1988 ed., Supp. V). If it is synonymous with "for the purpose of selling," as the Court holds, see ante, at 188, then the majority's comprehensive exposition of the statute is correct. I record my dissent only because that phrase conveys a different message to me. There must be a reason why Congress used the word "marketing" rather than the more common term "selling." Indeed, in 2541(a)(1), contained in the same subsection of the statute as the crucial language, Congress made it an act of infringement to "sell the novel variety." Yet, in 2541(a)(3), a mere two clauses later, Congress eschewed the word "sell" in favor of "marketing." Because Congress obviously could have prohibited sexual multiplication "as a step in selling," I presume that when it elected to prohibit sexual multiplication only "as a step in marketing (for growing purposes) the variety," Congress meant something different. Moreover, as used in this statute, "marketing" must be narrower, not broader, than selling. The majority is correct that one meaning of "marketing" is the act of selling and all acts preparatory thereto. See ante, at 187. But Congress has prohibited only one preparatory act—that of sexual multiplication—and only when it is a step in marketing. Under the majority's broad definition of "marketing," prohibiting sexual multiplication "as a step in marketing" can be no broader than prohibiting sexual multiplication "as a step in selling," because all steps in marketing are, ultimately, steps *194 in selling. If "marketing" can be no broader than "selling," and if Congress did not intend the two terms to be coextensive, then "marketing" must encompass something less than all "selling." The statute as a whole—and as interpreted by the Court of Appeals—indicates that Congress intended to preserve the farmer's right to engage in so-called "brown-bag sales" of seed to neighboring farmers. Congress limited that right by the express requirement that such sales may not constitute the "primary farming occupation" of either the buyer or the seller. Moreover, 2541(a)(3) makes it abundantly clear that the unauthorized participation in "marketing" of protected varieties is taboo. If one interprets "marketing" to refer to a subcategory of selling activities, namely, merchandising through farm cooperatives, wholesalers, retailers, or other commercial distributors, the entire statute seems to make sense. I think Congress wanted to allow any ordinary brown-bag sale from one farmer to another; but, as the Court of Appeals concluded, it did not want to permit farmers to compete with seed manufacturers on their own ground, through "extensive or coordinated selling activities, such as advertising, using an intervening sales representative, or similar extended merchandising or retail activities." This reading of the statute is consistent with our timehonored practice of viewing restraints on the alienation of property with disfavor. See, e. g.,[*] The seed at issue is part of a crop planted and harvested by a farmer on his own property. Generally the owner of personal *195 property—even a patented or copyrighted article—is free to dispose of that property as he sees fit. See, e. g., United ; Bobbs-Merrill A statutory restraint on this basic freedom should be expressed clearly and unambiguously. Cf. Deepsouth Packing As the majority recognizes, the meaning of this statute is "by no means clear." Ante, at 192. Accordingly, both because I am persuaded that the Court of Appeals correctly interpreted the intent of Congress, and because doubts should be resolved against purported restraints on freedom, I would affirm the judgment below.

Justice Ginsburg

majority

Watters v. Wachovia Bank, NA

2007-04-17

https://www.courtlistener.com/opinion/145747/watters-v-wachovia-bank-na/

https://www.courtlistener.com/api/rest/v3/clusters/145747/

2006-028

Business activities of national banks are controlled by the National Bank Act (NBA or Act), 12 U.S.C. § 1 et seq., and regulations promulgated thereunder by the Office of the Comptroller of the Currency (OCC). See §§ 24, 93a, 371(a). As the agency charged by Congress with supervision of the NBA, OCC oversees the operations of national banks and their interactions with customers. See NationsBank of N. C., N.A. v. Variable Annuity Life Ins. Co., 513 U.S. 251, 254, 256, 115 S. Ct. 810, 130 L. Ed. 2d 740 (1995). The agency exercises visitorial powers, including the authority to audit the bank's books and records, largely to the exclusion of other governmental entities, state or federal. See § 484(a); 12 CFR § 7.4000 (2006). The NBA specifically authorizes federally chartered banks to engage in real estate lending. 12 U.S.C. § 371. It also provides that banks shall have power "[t]o exercise ... all such incidental powers as shall be necessary to carry on the business of banking." § 24 Seventh. Among incidental powers, national banks may conduct certain activities through "operating subsidiaries," discrete entities authorized to engage solely in activities the bank itself could undertake, and subject to the same terms and conditions as those applicable to the bank. See § 24a(g)(3)(A); 12 CFR § 5.34(e) (2006). Respondent Wachovia Bank, a national bank, conducts its real estate lending business through Wachovia Mortgage Corporation, a wholly owned, state-chartered entity, licensed as an operating subsidiary by OCC. It is uncontested in this suit that Wachovia's real estate business, if conducted by the national bank itself, would be subject to OCC's superintendence, to the exclusion of state registration requirements and visitorial authority. The question in dispute is whether the bank's mortgage lending activities remain outside the governance of state licensing and auditing agencies when those activities are conducted, not by a division or department of the bank, but by the bank's operating subsidiary. In accord with the Courts of Appeals that have addressed the issue,[1] we hold that Wachovia's mortgage business, whether conducted by the bank itself or through the bank's operating subsidiary, is *1565 subject to OCC's superintendence, and not to the licensing, reporting, and visitorial regimes of the several States in which the subsidiary operates. I Wachovia Bank is a national banking association chartered by OCC. Respondent Wachovia Mortgage is a North Carolina corporation that engages in the business of real estate lending in the State of Michigan and elsewhere. Michigan's statutory regime exempts banks, both national and state, from state mortgage lending regulation, but requires mortgage brokers, lenders, and servicers that are subsidiaries of national banks to register with the State's Office of Insurance and Financial Services (OIFS) and submit to state supervision. Mich. Comp. Laws Ann. §§ 445.1656(1), 445.1679(1)(a) (West 2002), 493.52(1), and 493.53a(d) (West 1998).[2] From 1997 until 2003, Wachovia Mortgage was registered with OIFS to engage in mortgage lending. As a registrant, Wachovia Mortgage was required, inter alia, to pay an annual operating fee, file an annual report, and open its books and records to inspection by OIFS examiners. §§ 445.1657, 445.1658, 445.1671 (West 2002), 493.54, 493.56a(2), (13) (West 1998). Petitioner Linda Watters, the commissioner of OIFS, administers the State's lending laws. She exercises "general supervision and control" over registered lenders, and has authority to conduct examinations and investigations and to enforce requirements against registrants. See §§ 445.1661, 445.1665, 445.1666 (West 2002), 493.58, 493.56b, 493.59, 493.62a (West 1998 and Supp.2005). She also has authority to investigate consumer complaints and take enforcement action if she finds that a complaint is not "being adequately pursued by the appropriate federal regulatory authority." § 445.1663(2) (West 2002). On January 1, 2003, Wachovia Mortgage became a wholly owned operating subsidiary of Wachovia Bank. Three months later, Wachovia Mortgage advised the State of Michigan that it was surrendering its mortgage lending registration. Because it had become an operating subsidiary of a national bank, Wachovia Mortgage maintained, Michigan's registration and inspection requirements were preempted. Watters responded with a letter advising Wachovia Mortgage that it would no longer be authorized to conduct mortgage lending activities in Michigan. Wachovia Mortgage and Wachovia Bank filed suit against Watters, in her official capacity as commissioner, in the United States District Court for the Western District of Michigan. They sought declaratory and injunctive relief prohibiting Watters from enforcing Michigan's registration prescriptions against Wachovia Mortgage, and from interfering with OCC's exclusive visitorial authority. The NBA and regulations promulgated thereunder, they urged, vest supervisory authority in OCC and preempt the application of the state-law controls at issue. Specifically, Wachovia Mortgage and Wachovia Bank challenged as preempted certain provisions of two Michigan statutes—the Mortgage Brokers, Lenders, and Services Licensing Act and the Secondary Mortgage Loan Act. The challenged provisions (1) require mortgage lenders—including national bank operating subsidiaries but not national banks themselves—to register and pay fees to the *1566 State before they may conduct banking activities in Michigan, and authorize the commissioner to deny or revoke registrations, §§ 445.1652(1) (West Supp.2006), 445.1656(1)(d) (West 2002), 445.1657(1), 445.1658, 445.1679(1)(a), 493.52(1) (West 1998), 493.53a(d), 493.54, 493.55(4), 493.56a(2), and 493.61; (2) require submission of annual financial statements to the commissioner and retention of certain documents in a particular format, §§ 445.1657(2) (West 2002), 445.1671, 493.56a(2) (West 1998); (3) grant the commissioner inspection and enforcement authority over registrants, §§ 445.1661 (West 2002), 493.56b (West Supp.2005); and (4) authorize the commissioner to take regulatory or enforcement actions against covered lenders, §§ 445.1665 (West 2002), 445.1666, 493.58-59, and 493.62a (West 1998). In response, Watters argued that, because Wachovia Mortgage was not itself a national bank, the challenged Michigan controls were applicable and were not preempted. She also contended that the Tenth Amendment to the Constitution of the United States prohibits OCC's exclusive superintendence of national bank lending activities conducted through operating subsidiaries. The District Court granted summary judgment to the banks in relevant part. 334 F. Supp. 2d 957, 966 (W.D.Mich.2004). Invoking the two-step framework of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984), the court deferred to the Comptroller's determination that an operating subsidiary is subject to state regulation only to the extent that the parent bank would be if it performed the same functions. 334 F.Supp.2d, at 963-965 (citing, e.g., 12 CFR §§ 5.34(e)(3), 7.4006 (2004)). The court also rejected Watters' Tenth Amendment argument. 334 F.Supp.2d, at 965-966. The Sixth Circuit affirmed. 431 F.3d 556 (2005). We granted certiorari. 547 U.S. ___, 126 S. Ct. 2900, 165 L. Ed. 2d 915 (2006). II A Nearly two hundred years ago, in McCulloch v. Maryland, 4 Wheat. 316, 4 L. Ed. 579 (1819), this Court held federal law supreme over state law with respect to national banking. Though the bank at issue in McCulloch was short-lived, a federal banking system reemerged in the Civil War era. See Atherton v. FDIC, 519 U.S. 213, 221-222, 117 S. Ct. 666, 136 L. Ed. 2d 656 (1997); B. Hammond, Banks and Politics in America: from the Revolution to the Civil War (1957). In 1864, Congress enacted the NBA, establishing the system of national banking still in place today. National Bank Act, ch. 106, 13 Stat. 99;[3]Atherton, 519 U.S., at 222, 117 S. Ct. 666; Marquette Nat. Bank of Minneapolis v. First of Omaha Service Corp., 439 U.S. 299, 310, 314-315, 99 S. Ct. 540, 58 L. Ed. 2d 534 (1978). The Act vested in nationally chartered banks enumerated powers and "all such incidental powers as shall be necessary to carry on the business of banking." 12 U.S.C. § 24 Seventh. To prevent inconsistent or intrusive state regulation from impairing the national system, Congress provided: "No national bank shall be subject to any visitorial powers except as authorized by Federal law ...." § 484(a). In the years since the NBA's enactment, we have repeatedly made clear that *1567 federal control shields national banking from unduly burdensome and duplicative state regulation. See, e.g., Beneficial Nat. Bank v. Anderson, 539 U.S. 1, 10, 123 S. Ct. 2058, 156 L. Ed. 2d 1 (2003) (national banking system protected from "possible unfriendly State legislation" (quoting Tiffany v. National Bank of Mo., 18 Wall. 409, 412, 21 L. Ed. 862 (1874))). Federally chartered banks are subject to state laws of general application in their daily business to the extent such laws do not conflict with the letter or the general purposes of the NBA. Davis v. Elmira Savings Bank, 161 U.S. 275, 290, 16 S. Ct. 502, 40 L. Ed. 700 (1896). See also Atherton, 519 U.S., at 223, 117 S. Ct. 666. For example, state usury laws govern the maximum rate of interest national banks can charge on loans, 12 U.S.C. § 85, contracts made by national banks "are governed and construed by State laws," National Bank v. Commonwealth, 9 Wall. 353, 362, 19 L. Ed. 701 (1870), and national banks' "acquisition and transfer of property [are] based on State law," ibid. However, "the States can exercise no control over [national banks], nor in any wise affect their operation, except in so far as Congress may see proper to permit. Any thing beyond this is an abuse, because it is the usurpation of power which a single State cannot give." Farmers' and Mechanics' Nat. Bank v. Dearing, 91 U.S. 29, 34, 23 L. Ed. 196 (1875) (internal quotation marks omitted). We have "interpret[ed] grants of both enumerated and incidental `powers' to national banks as grants of authority not normally limited by, but rather ordinarily pre-empting, contrary state law." Barnett Bank of Marion Cty., N.A. v. Nelson, 517 U.S. 25, 32, 116 S. Ct. 1103, 134 L. Ed. 2d 237 (1996). See also Franklin Nat. Bank of Franklin Square v. New York, 347 U.S. 373, 375-379, 74 S. Ct. 550, 98 L. Ed. 767 (1954). States are permitted to regulate the activities of national banks where doing so does not prevent or significantly interfere with the national bank's or the national bank regulator's exercise of its powers. But when state prescriptions significantly impair the exercise of authority, enumerated or incidental under the NBA, the State's regulations must give way. Barnett Bank, 517 U.S., at 32-34, 116 S. Ct. 1103 (federal law permitting national banks to sell insurance in small towns preempted state statute prohibiting banks from selling most types of insurance); Franklin Nat. Bank, 347 U.S., at 377-379, 74 S. Ct. 550 (local restrictions preempted because they burdened exercise of national banks' incidental power to advertise). The NBA authorizes national banks to engage in mortgage lending, subject to OCC regulation. The Act provides: "Any national banking association may make, arrange, purchase or sell loans or extensions of credit secured by liens on interests in real estate, subject to 1828(o) of this title and such restrictions and requirements as the Comptroller of the Currency may prescribe by regulation or order." 12 U.S.C. § 371(a).[4] Beyond genuine dispute, state law may not significantly burden a national bank's own exercise of its real estate lending power, just as it may not curtail or hinder a national bank's efficient exercise of any other power, incidental or enumerated under *1568 the NBA. See Barnett Bank, 517 U.S., at 33-34, 116 S. Ct. 1103; Franklin, 347 U.S., at 375-379, 74 S. Ct. 550. See also 12 CFR § 34.4(a)(1) (2006) (identifying preempted state controls on mortgage lending, including licensing and registration). In particular, real estate lending, when conducted by a national bank, is immune from state visitorial control: The NBA specifically vests exclusive authority to examine and inspect in OCC. 12 U.S.C. § 484(a) ("No national bank shall be subject to any visitorial powers except as authorized by Federal law.").[5] Harmoniously, the Michigan provisions at issue exempt national banks from coverage. Mich. Comp. Laws Ann. § 445.1675(a) (West 2002). This is not simply a matter of the Michigan Legislature's grace. Cf. post, at 1570-1571, and n. 17. For, as the parties recognize, the NBA would have preemptive force, i.e., it would spare a national bank from state controls of the kind here involved. See Brief for Petitioner 12; Brief for Respondents 14; Brief for United States as Amicus Curiae 9. State laws that conditioned national banks' real estate lending on registration with the State, and subjected such lending to the State's investigative and enforcement machinery would surely interfere with the banks' federally authorized business: National banks would be subject to registration, inspection, and enforcement regimes imposed not just by Michigan, but by all States in which the banks operate.[6] Diverse and duplicative superintendence of national banks' engagement in the business of banking, we observed over a century ago, is precisely what the NBA was designed to prevent: "Th[e] legislation has in view the erection of a system extending throughout the country, and independent, so far as powers conferred are concerned, of state legislation which, if permitted to be applicable, might impose limitations and restrictions as various and as numerous as the States." Easton v. Iowa, 188 U.S. 220, 229, 23 S. Ct. 288, 47 L. Ed. 452 (1903). Congress did not intend, we explained, "to leave the field open for the States to attempt to promote the welfare and stability of national banks by direct legislation .... [C]onfusion would necessarily result from control possessed and exercised by two independent authorities." Id., at 231-232, 23 S. Ct. 288. Recognizing the burdens and undue duplication state controls could produce, Congress included in the NBA an express command: "No national bank shall be subject to any visitorial powers except as authorized by Federal law ... ." 12 U.S.C. § 484(a). See supra, at 1566, 1568; post, at 1569 (acknowledging that national banks have been "exemp[t] from state visitorial authority ... for more than 140 years"). "Visitation," we have explained "is the act of a superior or superintending officer, who visits a corporation to examine into its manner of conducting business, and enforce an observance of its laws and regulations." Guthrie v. Harkness, 199 U.S. 148, 158, 26 S. Ct. 4, 50 L. Ed. 130 (1905) (internal quotation marks omitted). See also 12 CFR § 7.4000(a)(2) (2006) (defining "visitorial" power as "(i) [e]xamination of a bank; (ii) [i]nspection of a bank's books and records; (iii) [r]egulation and supervision of *1569 activities authorized or permitted pursuant to federal banking law; and (iv)[e]nforcing compliance with any applicable federal or state laws concerning those activities"). Michigan, therefore, cannot confer on its commissioner examination and enforcement authority over mortgage lending, or any other banking business done by national banks.[7] B While conceding that Michigan's licensing, registration, and inspection requirements cannot be applied to national banks, see, e.g., Brief for Petitioner 10, 12, Watters argues that the State's regulatory regime survives preemption with respect to national banks' operating subsidiaries. Because such subsidiaries are separately chartered under some State's law, Watters characterizes them simply as "affiliates" of national banks, and contends that even though they are subject to OCC's superintendence, they are also subject to multistate control. Id., at 17-22. We disagree. Since 1966, OCC has recognized the "incidental" authority of national banks under § 24 Seventh to do business through operating subsidiaries. See 31 Fed.Reg. 11459-11460 (1966); 12 CFR § 5.34(e)(1) (2006) ("A national bank may conduct in an operating subsidiary activities that are permissible for a national bank to engage in directly either as part of, or incidental to, the business of banking...."). That authority is uncontested by Michigan's commissioner. See Brief for Petitioner 21 ("[N]o one disputes that 12 U.S.C. § 24 (Seventh) authorizes national banks to use nonbank operating subsidiaries ... ."). OCC licenses and oversees national bank operating subsidiaries just as it does national banks. § 5.34(e)(3) ("An operating subsidiary conducts activities authorized under this section pursuant to the same authorization, terms and conditions that apply to the conduct of such activities by its parent national bank.");[8] United States *1570 Office of the Comptroller of the Currency, Related Organizations: Comptroller's Handbook 53 (Aug.2004) (hereinafter Comptroller's Handbook) ("Operating subsidiaries are subject to the same supervision and regulation as the parent bank, except where otherwise provided by law or OCC regulation."). In 1999, Congress defined and regulated "financial" subsidiaries; simultaneously, Congress distinguished those national bank affiliates from subsidiaries—typed "operating subsidiaries" by OCC—which may engage only in activities national banks may engage in directly, "subject to the same terms and conditions that govern the conduct of such activities by national banks." Gramm-Leach-Bliley Act (GLBA), § 121(a)(2), 113 Stat. 1378 (codified at 12 U.S.C. § 24a(g)(3)(A)).[9] For supervisory purposes, OCC treats national banks and their operating subsidiaries as a single economic enterprise. Comptroller's Handbook 64. OCC oversees both entities by reference to "business line," applying the same controls whether banking "activities are conducted directly or through an operating subsidiary." Ibid.[10] As earlier noted, Watters does not contest the authority of national banks to do business through operating subsidiaries. Nor does she dispute OCC's authority to supervise and regulate operating subsidiaries in the same manner as national banks. Still, Watters seeks to impose state regulation on operating subsidiaries over and above regulation undertaken by OCC. But just as duplicative state examination, supervision, and regulation would significantly burden mortgage lending when engaged in by national banks, see supra, at 1566-1569, so too would those state controls interfere with that same activity when engaged in by an operating subsidiary. We have never held that the preemptive reach of the NBA extends only to a national bank itself. Rather, in analyzing whether state law hampers the federally permitted activities of a national bank, we have focused on the exercise of a national bank's powers, not on its corporate structure. See, e.g., Barnett Bank, 517 U.S., at 32, 116 S. Ct. 1103. And we have treated operating subsidiaries as equivalent to national *1571 banks with respect to powers exercised under federal law (except where federal law provides otherwise). In NationsBank of N. C., N. A., 513 U.S., at 256-261, 115 S. Ct. 810, for example, we upheld OCC's determination that national banks had "incidental" authority to act as agents in the sale of annuities. It was not material that the function qualifying as within "the business of banking," § 24 Seventh, was to be carried out not by the bank itself, but by an operating subsidiary, i.e., an entity "subject to the same terms and conditions that govern the conduct of [the activity] by national banks [themselves]." § 24a(g)(3)(A); 12 CFR § 5.34(e)(3) (2006). See also Clarke v. Securities Industry Assn., 479 U.S. 388, 107 S. Ct. 750, 93 L. Ed. 2d 757 (1987) (national banks, acting through operating subsidiaries, have power to offer discount brokerage services).[11] Security against significant interference by state regulators is a characteristic condition of the "business of banking" conducted by national banks, and mortgage lending is one aspect of that business. See, e.g., 12 U.S.C. § 484(a); 12 CFR § 34.4(a)(1) (2006). See also supra, at 1566-1569; post, at 1576 (acknowledging that, in 1982, Congress broadly authorized national banks to engage in mortgage lending); post, at 1581, and n. 20 (acknowledging that operating subsidiaries "are subject to the same federal oversight as their national bank parents"). That security should adhere whether the business is conducted by the bank itself or is assigned to an operating subsidiary licensed by OCC whose authority to carry on the business coincides completely with that of the bank. See Wells Fargo Bank, N.A. v. Boutris, 419 F.3d 949, 960 (C.A.9 2005) (determination whether to conduct business through operating subsidiaries or through subdivisions is "essentially one of internal organization"). Watters contends that if Congress meant to deny States visitorial powers over operating subsidiaries, it would have written § 484(a)'s ban on state inspection to apply not only to national banks but also to their affiliates. She points out that § 481, which authorizes OCC to examine "affiliates" of national banks, does not speak to state visitorial powers. This argument fails for two reasons. First, one cannot ascribe any intention regarding operating subsidiaries to the 1864 Congress that enacted §§ 481 and 484, or the 1933 Congress that added the provisions on examining affiliates to § 481 and the definition of "affiliate" to § 221a. That is so because operating subsidiaries were not authorized until 1966. See supra, at 1569-1570. Over the past four decades, during which operating subsidiaries have emerged as important instrumentalities of national banks, Congress and OCC have indicated no doubt that such subsidiaries are "subject to the same terms and conditions" as national banks themselves. Second, Watters ignores the distinctions Congress recognized among "affiliates." The NBA broadly defines the term "affiliate" to include "any corporation" controlled by a national bank, including a subsidiary. See 12 U.S.C. § 221a(b). An operating subsidiary is therefore one type of "affiliate." But unlike affiliates that may engage in functions not authorized by the NBA, e.g., financial subsidiaries, an operating subsidiary is tightly tied to its parent by the specification that it may *1572 engage only in "the business of banking" as authorized by the Act. § 24a(g)(3)(A); 12 CFR § 5.34(e)(1) (2006). See also supra, at 1569-1570, and 1576 n. 10. Notably, when Congress amended the NBA confirming that operating subsidiaries may "engag[e] solely in activities that national banks are permitted to engage in directly," 12 U.S.C. § 24a(g)(3)(A), it did so in an Act, the GLBA, providing that other affiliates, authorized to engage in nonbanking financial activities, e.g., securities and insurance, are subject to state regulation in connection with those activities. See, e.g., §§ 1843(k), 1844(c)(4). See also 15 U.S.C. § 6701(b) (any person who sells insurance must obtain a state license to do so).[12] C Recognizing the necessary consequence of national banks' authority to engage in mortgage lending through an operating subsidiary "subject to the same terms and conditions that govern the conduct of such activities by national banks," 12 U.S.C. § 24a(g)(3)(A), see also § 24 Seventh, OCC promulgated 12 CFR § 7.4006 (2006): "Unless otherwise provided by Federal law or OCC regulation, State laws apply to national bank operating subsidiaries to the same extent that those laws apply to the parent national bank." See Investment Securities; Bank Activities & Operations; Leasing, 66 Fed. Reg. 34784, 34788 (2001). Watters disputes the authority of OCC to promulgate this regulation and contends that, because preemption is a legal question for determination by courts, § 7.4006 should attract no deference. See also post, at 1582-1585. This argument is beside the point, for under our interpretation of the statute, the level of deference owed to the regulation is an academic question. Section 7.4006 merely clarifies and confirms what the NBA already conveys: A national bank has the power to engage in real estate lending through an operating subsidiary, subject to the same terms and conditions that govern the national bank itself; that power cannot be significantly impaired or impeded by state law. See, e.g., Barnett Bank, 517 U.S., at 33-34, 116 S. Ct. 1103; 12 U.S.C. §§ 24 Seventh, 24a(g)(3)(A), 371.[13] The NBA is thus properly read by OCC to protect from state hindrance a national bank's engagement in the "business of banking" whether conducted by the bank itself or by an operating subsidiary, empowered to do only what the bank itself could do. See supra, at 1569-1570. The authority to engage in the business of mortgage lending comes from the NBA, § 371, as does the authority to conduct business through an operating subsidiary. See §§ 24 Seventh, 24a(g)(3)(A). That Act vests visitorial oversight in OCC, not state regulators. § 484(a). State law (in this *1573 case, North Carolina law), all agree, governs incorporation-related issues, such as the formation, dissolution, and internal governance of operating subsidiaries.[14] And the laws of the States in which national banks or their affiliates are located govern matters the NBA does not address. See supra, at 1566-1567. But state regulators cannot interfere with the "business of banking" by subjecting national banks or their OCC-licensed operating subsidiaries to multiple audits and surveillance under rival oversight regimes. III Watters' alternative argument, that 12 CFR § 7.4006 violates the Tenth Amendment to the Constitution, is unavailing. As we have previously explained, "[i]f a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States." New York v. United States, 505 U.S. 144, 156, 112 S. Ct. 2408, 120 L. Ed. 2d 120 (1992). Regulation of national bank operations is a prerogative of Congress under the Commerce and Necessary and Proper Clauses. See Citizens Bank v. Alafabco, Inc., 539 U.S. 52, 58, 123 S. Ct. 2037, 156 L. Ed. 2d 46 (2003) (per curiam). The Tenth Amendment, therefore, is not implicated here. * * * For the reasons stated, the judgment of the Sixth Circuit is Affirmed. Justice THOMAS took no part in the consideration or decision of this case.

Business activities of national banks are controlled by the National Act (NBA or Act), et seq., and regulations promulgated thereunder by the Office of the Comptroller of the Currency (OCC). See 24, 93a, 371(a). As the agency charged by Congress with supervision of the NBA, OCC oversees the operations of national banks and their interactions with customers. See Nations of N. C., The agency exercises visitorial powers, including the authority to audit the bank's books and records, largely to the exclusion of other governmental entities, state or federal. See 484(a); 12 CFR 7.4000 The NBA specifically authorizes federally chartered banks to engage in real estate lending. 12 U.S.C. 371. It provides that banks shall have power "[t]o exercise all such incidental powers as shall be necessary to carry on the business of banking." 24 Seventh. Among incidental powers, national banks may conduct certain activities through "operating subsidiaries," discrete entities authorized to engage solely in activities the bank itself could undertake, and subject to the same terms and conditions as those applicable to the bank. See 24a(g)(3)(A); 12 CFR 5.(e) Respondent Wachovia a national bank, conducts its real estate lending business through Wachovia Mortgage Corporation, a wholly owned, state-chartered entity, licensed as an operating subsidiary by OCC. It is uncontested in this suit that Wachovia's real estate business, if conducted by the national bank itself, would be subject to OCC's superintendence, to the exclusion of state registration requirements and visitorial authority. The question in dispute is whether the bank's mortgage lending activities remain outside the governance of state licensing and auditing agencies when those activities are conducted, not by a division or department of the bank, but by the bank's operating subsidiary. In accord with the Courts of Appeals that have addressed the issue,[1] we hold that Wachovia's mortgage business, whether conducted by the bank itself or through the bank's operating subsidiary, is *5 subject to OCC's superintendence, and not to the licensing, reporting, and visitorial regimes of the several States in which the subsidiary operates. I Wachovia is a national banking association chartered by OCC. Respondent Wachovia Mortgage is a North Carolina corporation that engages in the business of real estate lending in the State of Michigan and elsewhere. Michigan's statutory regime exempts banks, both national and state, from state mortgage lending regulation, but requires mortgage brokers, lenders, and servicers that are subsidiaries of national banks to register with the State's Office of Insurance and Financial Services (OIFS) and submit to state supervision. Mich. Comp. Laws Ann. 445.1656(1), 445.1679(1)(a) (West 2002), 493.52(1), and 493.53a(d) (West 1998).[2] From until Wachovia Mortgage was registered with OIFS to engage in mortgage lending. As a registrant, Wachovia Mortgage was required, inter alia, to pay an annual operating fee, file an annual report, and open its books and records to inspection by OIFS examiners. 445.1657, 445.16, 445.1671 (West 2002), 493.54, 493.56a(2), (13) (West 1998). Petitioner Linda Watters, the commissioner of OIFS, administers the State's lending laws. She exercises "general supervision and control" over registered lenders, and has authority to conduct examinations and investigations and to enforce requirements against registrants. See 445.1661, 445.1665, 445.1666 (West 2002), 493., 493.56b, 493.59, 493.62a She has authority to investigate consumer complaints and take enforcement action if she finds that a complaint is not "being adequately pursued by the appropriate federal regulatory authority." 445.1663(2) (West 2002). On January 1, Wachovia Mortgage became a wholly owned operating subsidiary of Wachovia Three months later, Wachovia Mortgage advised the State of Michigan that it was surrendering its mortgage lending registration. Because it had become an operating subsidiary of a national bank, Wachovia Mortgage maintained, Michigan's registration and inspection requirements were preempted. Watters responded with a letter advising Wachovia Mortgage that it would no longer be authorized to conduct mortgage lending activities in Michigan. Wachovia Mortgage and Wachovia filed suit against Watters, in her official capacity as commissioner, in the United States District Court for the Western District of Michigan. They sought declaratory and injunctive relief prohibiting Watters from enforcing Michigan's registration prescriptions against Wachovia Mortgage, and from interfering with OCC's exclusive visitorial authority. The NBA and regulations promulgated thereunder, they urged, vest supervisory authority in OCC and preempt the application of the state-law controls at issue. Specifically, Wachovia Mortgage and Wachovia challenged as preempted certain provisions of two Michigan statutes—the Mortgage Brokers, Lenders, and Services Licensing Act and the Secondary Mortgage Loan Act. The challenged provisions (1) require mortgage lenders—including national bank operating subsidiaries but not national banks themselves—to register and pay fees to the *6 State before they may conduct banking activities in Michigan, and authorize the commissioner to deny or revoke registrations, 445.1652(1) 445.1656(1)(d) (West 2002), 445.1657(1), 445.16, 445.1679(1)(a), 493.52(1) (West 1998), 493.53a(d), 493.54, 493.55(4), 493.56a(2), and 493.61; (2) require submission of annual financial statements to the commissioner and retention of certain documents in a particular format, 445.1657(2) (West 2002), 445.1671, 493.56a(2) (West 1998); (3) grant the commissioner inspection and enforcement authority over registrants, 445.1661 (West 2002), 493.56b ; and (4) authorize the commissioner to take regulatory or enforcement actions against covered lenders, 445.1665 (West 2002), 445.1666, 493.-59, and 493.62a (West 1998). In response, Watters argued that, because Wachovia Mortgage was not itself a national bank, the challenged Michigan controls were applicable and were not preempted. She contended that the Tenth Amendment to the Constitution of the United States prohibits OCC's exclusive superintendence of national bank lending activities conducted through operating subsidiaries. The District Court granted summary judgment to the banks in relevant part. (W.D.Mich.2004). Invoking the two-step framework of Chevron U.S. the court deferred to the Comptroller's determination that an operating subsidiary is subject to state regulation only to the extent that the parent bank would be if it performed the same -965 (citing, e.g., 12 CFR 5.(e)(3), 7.4006 (2004)). The court rejected Watters' Tenth Amendment -. The Sixth Circuit affirmed. We granted certiorari. 547 U.S. II A Nearly two hundred years ago, in this Court held federal law supreme over state law with respect to national banking. Though the bank at issue in McCulloch was short-lived, a federal banking system reemerged in the Civil War era. See ; B. Hammond, s and Politics in America: from the Revolution to the Civil War (1957). In 1864, Congress enacted the NBA, establishing the system of national banking still in place today. National Act, ch. 6, ;[3], The Act vested in nationally chartered banks enumerated powers and "all such incidental powers as shall be necessary to carry on the business of banking." 12 U.S.C. 24 Seventh. To prevent inconsistent or intrusive state regulation from impairing the national system, Congress provided: "No national bank shall be subject to any visitorial powers except as authorized by Federal law" 484(a). In the years since the NBA's enactment, we have repeatedly made clear that *7 federal control shields national banking from unduly burdensome and duplicative state regulation. See, e.g., Beneficial Nat. Federally chartered banks are subject to state laws of general application in their daily business to the extent such laws do not conflict with the letter or the general purposes of the NB See For example, state usury laws govern the maximum rate of interest national banks can charge on loans, 12 U.S.C. 85, contracts made by national banks "are governed and construed by State laws," National and national banks' "acquisition and transfer of property [are] based on State law," However, "the States can exercise no control over [national banks], nor in any wise affect their operation, except in so far as Congress may see proper to permit. Any thing beyond this is an abuse, because it is the usurpation of power which a single State cannot give." Farmers' and Mechanics' Nat. We have "interpret[ed] grants of both enumerated and incidental `powers' to national banks as grants of authority not normally limited by, but rather ordinarily pre-empting, contrary state law." Barnett of Marion Cty., 116 S. Ct. 13, 1 L. Ed. 2d 237 See Nat. of 7 U.S. 373, States are permitted to regulate the activities of national banks where doing so does not prevent or significantly interfere with the national bank's or the national bank regulator's exercise of its powers. But when state prescriptions significantly impair the exercise of authority, enumerated or incidental under the NBA, the State's regulations must give way. Barnett 517 U.S., at -, 116 S. Ct. 13 (federal law permitting national banks to sell insurance in small towns preempted state statute prohibiting banks from selling most types of insurance); Nat. 7 U.S., at 377-379, (local restrictions preempted because they burdened exercise of national banks' incidental power to advertise). The NBA authorizes national banks to engage in mortgage lending, subject to OCC regulation. The Act provides: "Any national banking association may make, arrange, purchase or sell loans or extensions of credit secured by liens on interests in real estate, subject to 1828(o) of this title and such restrictions and requirements as the Comptroller of the Currency may prescribe by regulation or order." 12 U.S.C. 371(a).[4] Beyond genuine dispute, state law may not significantly burden a national bank's own exercise of its real estate lending power, just as it may not curtail or hinder a national bank's efficient exercise of any other power, incidental or enumerated under *8 the NB See Barnett -, 116 S. Ct. 13; 7 U.S., at See 12 CFR4(a)(1) In particular, real estate lending, when conducted by a national bank, is immune from state visitorial control: The NBA specifically vests exclusive authority to examine and inspect in OCC. 12 U.S.C. 484(a)[5] Harmoniously, the Michigan provisions at issue exempt national banks from coverage. Mich. Comp. Laws Ann. 445.1675(a) (West 2002). This is not simply a matter of the Michigan Legislature's grace. Cf. post, at 1570-1571, and n. 17. For, as the parties recognize, the NBA would have preemptive force, i.e., it would spare a national bank from state controls of the kind here involved. See Brief for Petitioner 12; Brief for Respondents 14; Brief for United States as Amicus Curiae 9. State laws that conditioned national banks' real estate lending on registration with the State, and subjected such lending to the State's investigative and enforcement machinery would surely interfere with the banks' federally authorized business: National banks would be subject to registration, inspection, and enforcement regimes imposed not just by Michigan, but by all States in which the banks operate.[6] Diverse and duplicative superintendence of national banks' engagement in the business of banking, we observed over a century ago, is precisely what the NBA was designed to prevent: "Th[e] legislation has in view the erection of a system extending throughout the country, and independent, so far as powers conferred are concerned, of state legislation which, if permitted to be applicable, might impose limitations and restrictions as various and as numerous as the States." Congress did not intend, we explained, "to leave the field open for the States to attempt to promote the welfare and stability of national banks by direct legislation [C]onfusion would necessarily result from control possessed and exercised by two independent authorities." at 231-2, Recognizing the burdens and undue duplication state controls could produce, Congress included in the NBA an express command: "No national bank shall be subject to any visitorial powers except as authorized by Federal law" 12 U.S.C. 484(a). See ; post, at 9 (acknowledging that national banks have been "exemp[t] from state visitorial authority for more than 140 years"). "Visitation," we have explained "is the act of a superior or superintending officer, who visits a corporation to examine into its manner of conducting business, and enforce an observance of its laws and regulations." See 12 CFR 7.4000(a)(2) [e]nforcing compliance with any applicable federal or state laws concerning those activities"). Michigan, therefore, cannot confer on its commissioner examination and enforcement authority over mortgage lending, or any other banking business done by national banks.[7] B While conceding that Michigan's licensing, registration, and inspection requirements cannot be applied to national banks, see, e.g., Brief for Petitioner 12, Watters argues that the State's regulatory regime survives preemption with respect to national banks' operating subsidiaries. Because such subsidiaries are separately chartered under some State's law, Watters characterizes them simply as "affiliates" of national banks, and contends that even though they are subject to OCC's superintendence, they are subject to multistate control. We disagree. Since 1, OCC has recognized the "incidental" authority of national banks under 24 Seventh to do business through operating subsidiaries. See 31 Fed.Reg. 11459-11460 (1); 12 CFR 5.(e)(1) That authority is uncontested by Michigan's commissioner. See Brief for Petitioner 21 ("[N]o one disputes that 12 U.S.C. 24 (Seventh) authorizes national banks to use nonbank operating subsidiaries"). OCC licenses and oversees national bank operating subsidiaries just as it does national banks. 5.(e)(3) ("An operating subsidiary conducts activities authorized under this section pursuant to the same authorization, terms and conditions that apply to the conduct of such activities by its parent national bank.");[8] United States *1570 Office of the Comptroller of the Currency, Related Organizations: Comptroller's Handbook 53 (Aug.2004) (hereinafter Comptroller's Handbook) ("Operating subsidiaries are subject to the same supervision and regulation as the parent bank, except where otherwise provided by law or OCC regulation."). In 1999, Congress defined and regulated "financial" subsidiaries; simultaneously, Congress distinguished those national bank affiliates from subsidiaries—typed "operating subsidiaries" by OCC—which may engage only in activities national banks may engage in directly, "subject to the same terms and conditions that govern the conduct of such activities by national banks." Gramm-Leach-Bliley Act (GLBA), 121(a)(2), (codified at 12 U.S.C. 24a(g)(3)(A)).[9] For supervisory purposes, OCC treats national banks and their operating subsidiaries as a single economic enterprise. Comptroller's Handbook 64. OCC oversees both entities by reference to "business line," applying the same controls whether banking "activities are conducted directly or through an operating subsidiary." Ibid.[] As earlier noted, Watters does not contest the authority of national banks to do business through operating subsidiaries. Nor does she dispute OCC's authority to supervise and regulate operating subsidiaries in the same manner as national banks. Still, Watters seeks to impose state regulation on operating subsidiaries over and above regulation undertaken by OCC. But just as duplicative state examination, supervision, and regulation would significantly burden mortgage lending when engaged in by national banks, see so too would those state controls interfere with that same activity when engaged in by an operating subsidiary. We have never held that the preemptive reach of the NBA extends only to a national bank itself. Rather, in analyzing whether state law hampers the federally permitted activities of a national bank, we have focused on the exercise of a national bank's powers, not on its corporate structure. See, e.g., Barnett 517 U.S., at 116 S. Ct. 13. And we have treated operating subsidiaries as equivalent to national *1571 banks with respect to powers exercised under federal law (except where federal law provides otherwise). In Nations of N. C., N. -261, for example, we upheld OCC's determination that national banks had "incidental" authority to act as agents in the sale of annuities. It was not material that the function qualifying as within "the business of banking," 24 Seventh, was to be carried out not by the bank itself, but by an operating subsidiary, i.e., an entity "subject to the same terms and conditions that govern the conduct of [the activity] by national banks [themselves]." 24a(g)(3)(A); 12 CFR 5.(e)(3) See 7 S. Ct. 750,[11] Security against significant interference by state regulators is a characteristic condition of the "business of banking" conducted by national banks, and mortgage lending is one aspect of that business. See, e.g., 12 U.S.C. 484(a); 12 CFR4(a)(1) See ; post, at 1576 (acknowledging that, in 1982, Congress broadly authorized national banks to engage in mortgage lending); post, at 1, and n. 20 (acknowledging that operating subsidiaries "are subject to the same federal oversight as their national bank parents"). That security should adhere whether the business is conducted by the bank itself or is assigned to an operating subsidiary licensed by OCC whose authority to carry on the business coincides completely with that of the bank. See Wells Fargo N. v. Boutris, Watters contends that if Congress meant to deny States visitorial powers over operating subsidiaries, it would have written 484(a)'s ban on state inspection to apply not only to national banks but to their affiliates. She points out that 481, which authorizes OCC to examine "affiliates" of national banks, does not speak to state visitorial powers. This argument fails for two reasons. First, one cannot ascribe any intention regarding operating subsidiaries to the 1864 Congress that enacted 481 and 484, or the 1933 Congress that added the provisions on examining affiliates to 481 and the definition of "affiliate" to 221a. That is so because operating subsidiaries were not authorized until 1. See Over the past four decades, during which operating subsidiaries have emerged as important instrumentalities of national banks, Congress and OCC have indicated no doubt that such subsidiaries are "subject to the same terms and conditions" as national banks themselves. Second, Watters ignores the distinctions Congress recognized among "affiliates." The NBA broadly defines the term "affiliate" to include "any corporation" controlled by a national bank, including a subsidiary. See 12 U.S.C. 221a(b). An operating subsidiary is therefore one type of "affiliate." But unlike affiliates that may engage in functions not authorized by the NBA, e.g., financial subsidiaries, an operating subsidiary is tightly tied to its parent by the specification that it may *1572 engage only in "the business of banking" as authorized by the Act. 24a(g)(3)(A); 12 CFR 5.(e)(1) See and 1576 n. Notably, when Congress amended the NBA confirming that operating subsidiaries may "engag[e] solely in activities that national banks are permitted to engage in directly," 12 U.S.C. 24a(g)(3)(A), it did so in an Act, the GLBA, providing that other affiliates, authorized to engage in nonbanking financial activities, e.g., securities and insurance, are subject to state regulation in connection with those activities. See, e.g., 1843(k), 1844(c)(4). See 15 U.S.C. 6701(b)[12] C Recognizing the necessary consequence of national banks' authority to engage in mortgage lending through an operating subsidiary "subject to the same terms and conditions that govern the conduct of such activities by national banks," 12 U.S.C. 24a(g)(3)(A), see 24 Seventh, OCC promulgated 12 CFR 7.4006 : "Unless otherwise provided by Federal law or OCC regulation, State laws apply to national bank operating subsidiaries to the same extent that those laws apply to the parent national bank." See Investment Securities; Activities & Operations; Leasing, 66 Fed. Reg. 784, 788 (2001). Watters disputes the authority of OCC to promulgate this regulation and contends that, because preemption is a legal question for determination by courts, 7.4006 should attract no deference. See post, at 2-5. This argument is beside the point, for under our interpretation of the statute, the level of deference owed to the regulation is an academic question. Section 7.4006 merely clarifies and confirms what the NBA already conveys: A national bank has the power to engage in real estate lending through an operating subsidiary, subject to the same terms and conditions that govern the national bank itself; that power cannot be significantly impaired or impeded by state law. See, e.g., Barnett -, 116 S. Ct. 13; 12 U.S.C. 24 Seventh, 24a(g)(3)(A), 371.[13] The NBA is thus properly read by OCC to protect from state hindrance a national bank's engagement in the "business of banking" whether conducted by the bank itself or by an operating subsidiary, empowered to do only what the bank itself could do. See The authority to engage in the business of mortgage lending comes from the NBA, 371, as does the authority to conduct business through an operating subsidiary. See 24 Seventh, 24a(g)(3)(A). That Act vests visitorial oversight in OCC, not state regulators. 484(a). State law (in this *1573 case, North Carolina law), all agree, governs incorporation-related issues, such as the formation, dissolution, and internal governance of operating subsidiaries.[14] And the laws of the States in which national banks or their affiliates are located govern matters the NBA does not address. See But state regulators cannot interfere with the "business of banking" by subjecting national banks or their OCC-licensed operating subsidiaries to multiple audits and surveillance under rival oversight regimes. III Watters' alternative argument, that 12 CFR 7.4006 violates the Tenth Amendment to the Constitution, is unavailing. As we have previously explained, "[i]f a power is delegated to Congress in the Constitution, the Tenth Amendment expressly disclaims any reservation of that power to the States." New Regulation of national bank operations is a prerogative of Congress under the Commerce and Necessary and Proper Clauses. See Citizens v. Alafabco, Inc., L. Ed. 2d 46 The Tenth Amendment, therefore, is not implicated here. * * * For the reasons stated, the judgment of the Sixth Circuit is Affirmed. Justice THOMAS took no part in the consideration or decision of this case.

Justice Stevens

dissenting

Watters v. Wachovia Bank, NA

2007-04-17

https://www.courtlistener.com/opinion/145747/watters-v-wachovia-bank-na/

https://www.courtlistener.com/api/rest/v3/clusters/145747/

2006-028

Congress has enacted no legislation immunizing national bank subsidiaries from compliance with nondiscriminatory state laws regulating the business activities of mortgage brokers and lenders. Nor has it authorized an executive agency to preempt such state laws whenever it concludes that they interfere with national bank activities. Notwithstanding the absence of relevant statutory authority, today the Court endorses an agency's incorrect determination that the laws of a sovereign State must yield to federal power. The significant impact of the Court's decision on the federal-state balance and the dual banking system makes it appropriate to set forth in full the reasons for my dissent. I The National Bank Act (or NBA), 13 Stat. 99, authorized the incorporation of national banks, § 5, id., at 98, and granted them "all such incidental powers as shall be necessary to carry on the business of banking," § 8, id., at 98 (codified at 12 U.S.C. § 24 Seventh), subject to regulatory oversight by the Comptroller of the Currency, § 54, 13 Stat. 116. To maintain a meaningful role for state legislation and for state corporations that did not engage in core banking activities, Congress circumscribed national bank authority. Notably, national banks were expressly forbidden from making mortgage loans, § 28, id., at 108.[1] Moreover, the shares of national *1574 banks, as well their real estate holdings, were subject to nondiscriminatory state taxation, § 41, id., at 111; and while national banks could lend money, state law capped the interest rates they could charge, § 20, id., at 105. Originally, it was anticipated that "existing banks would surrender their state charters and re-incorporate under the terms of the new law with national charters."[2] That did not happen. Instead, after an initial post-National Bank Act decline, state-chartered institutions thrived.[3] What emerged was the competitive mix of state and national banks known as the dual banking system. This Court has consistently recognized that because federal law is generally interstitial, national banks must comply with most of the same rules as their state counterparts. As early as 1870, we articulated the principle that has remained the lodestar of our jurisprudence: that national banks "are only exempted from State legislation, so far as that legislation may interfere with, or impair their efficiency in performing the functions by which they are designed to serve that government.... They are subject to the laws of the State, and are governed in their daily course of business far more by the laws of the State than of the nation. All their contracts are governed and construed by State laws. Their acquisition and transfer of property, their right to collect their debts, and their liability to be sued for debts, are all based on State law. It is only when the State law incapacitates the banks from discharging their duties to the government that it becomes unconstitutional." National Bank v. Commonwealth, 9 Wall. 353, 362, 19 L. Ed. 701 (1870) (emphasis added).[4] Until today, we have remained faithful to the principle that nondiscriminatory laws of general application that do not "forbid" or "impair significantly" national bank activities should not be preempted. See, e.g., Barnett Bank of Marion Cty., N.A. v. Nelson, 517 U.S. 25, 33, 116 S. Ct. 1103, 134 L. Ed. 2d 237 (1996).[5] Nor is the Court alone in recognizing the vital role that state legislation plays in the dual banking system. Although the dual banking system's main virtue is its divergent treatment of national and state *1575 banks,[6] Congress has consistently recognized that state law must usually govern the activities of both national and state banks for the dual banking system to operate effectively. As early as 1934, Justice Brandeis observed for the Court that this congressional recognition is embodied in a long string of statutes: "The policy of equalization was adopted in the National Bank Act of 1864, and has ever since been applied, in the provision concerning taxation. In amendments to that act and in the Federal Reserve Act and amendments thereto the policy is expressed in provisions conferring power to establish branches; in those conferring power to act as fiduciary; in those concerning interest on deposits; and in those concerning capitalization. It appears also to have been of some influence in securing the grant in 1913 of the power to loan on mortgage." Lewis v. Fidelity & Deposit Co. of Md., 292 U.S. 559, 564-565, 54 S. Ct. 848, 78 L. Ed. 1425 (footnotes, with citations to relevant statutes, omitted).[7] For the same reasons, we observed in First Nat. Bank in Plant City v. Dickinson, 396 U.S. 122, 133, 90 S. Ct. 337, 24 L. Ed. 2d 312 (1969), that "[t]he policy of competitive equality is ... firmly embedded in the statutes governing the national banking system." So firmly embedded, in fact, that "the congressional policy of competitive equality with its deference to state standards" is not "open to modification by the Comptroller of the Currency." Id., at 138, 90 S. Ct. 337. II Although the dual banking system has remained intact, Congress has radically transformed the national bank system from its Civil War antecedent and brought considerably more federal authority to bear on state-chartered institutions. Yet despite all the changes Congress has made to the national bank system, and despite its exercise of federal power over state banks, it has never preempted state laws like those at issue in this case. Most significantly, in 1913 Congress established the Federal Reserve System to oversee federal monetary policy through its influence over the availability of credit. Federal Reserve Act §§ 2, 9, 38 Stat. 252, 259. The Act required national banks and permitted state banks to become Federal Reserve member banks, and subjected all member banks to Federal Reserve regulations and oversight. Ibid. Also of signal importance, after the banking system collapsed during the Great Depression, Congress required all member banks to obtain deposit insurance from the newly established Federal Deposit Insurance Corporation. Banking Act of 1933 (or Glass-Steagall Act), § 8, 48 Stat. 168; see also Banking Act of 1935, 49 Stat. 684. Although both of these steps meant that many state banks were subjected to significant federal regulation,[8] "the state banking system continued along with the national *1576 banking system, with no attempt to exercise preemptive federal regulatory authority over the activities of the existing state banks." M. Malloy, Banking and Financial Services Law 48 (2d ed.2005). In addition to these systemic overhauls, Congress has over time modified the powers of national banks. The changes are too various to recount in detail, but two are of particular importance to this case. First, Congress has gradually relaxed its prohibition on mortgage lending by national banks. In 1913, Congress permitted national banks to make loans secured by farm land, Federal Reserve Act, § 24, 38 Stat. 273, and in succeeding years, their mortgage-lending power was enlarged to cover loans on real estate in the vicinity of the bank, Act of Sept. 7, 1916, 39 Stat. 754, and loans "secured by first liens upon forest tracts which are properly managed in all respects," Act of Aug. 15, 1953, ch. 510, 67 Stat. 614. Congress substantially expanded national banks' power to make real estate loans in 1974, see Housing and Community Development Act, Title VII, § 711, 88 Stat 716, and in 1982 it enacted the broad language, now codified at 12 U.S.C. § 371(a), authorizing national banks to make "loans ... secured by liens on interests in real estate." Garn-St Germain Depository Institutions Act of 1982, Title IV, § 403, 96 Stat. 1510. While these changes have enabled national banks to engage in more evenhanded competition with state banks, they certainly reflect no purpose to give them any competitive advantage.[9] Second, Congress has over the years both curtailed and expanded the ability of national banks to affiliate with other companies. In the early part of the century, banks routinely engaged in investment activities and affiliated with companies that did the same. The Glass-Steagall Act put an end to that. "[E]nacted in 1933 to protect bank depositors from any repetition of the widespread bank closings that occurred during the Great Depression," Board of Governors, FRS v. Investment Company Institute, 450 U.S. 46, 61, 101 S. Ct. 973, 67 L. Ed. 2d 36 (1981), Glass-Steagall prohibited Federal Reserve member banks (both state and national) from affiliating with investment banks.[10] In Congress' view, the affiliates had engaged in speculative activities that in turn contributed to commercial banks' Depression-era failures.[11] It was this focus on the welfare of depositors—as opposed to stockholders—that provided the basis for legislative action designed to ensure bank solvency. A scant two years later, Congress forbade national banks from owning the *1577 shares of any company because of a similar fear that such ownership could undermine the safety and soundness of national banks:[12] "Except as hereinafter provided or otherwise permitted by law, nothing herein contained shall authorize the purchase by [a national bank] for its own account of any shares of stock of any corporation." Banking Act of 1935, § 308(b), 49 Stat. 709 (emphasis added). That provision remains on the books today. See 12 U.S.C. § 24 Seventh. These congressional restrictions did not forbid all affiliations, however, and national banks began experimenting with new corporate forms. One of those forms involved the national bank ownership of "operating subsidiaries." In 1966, the Comptroller of the Currency took the position "that a national bank may acquire and hold the controlling stock interest in a subsidiary operations corporation" so long as that corporation's "functions or activities ... are limited to one or several of the functions or activities that a national bank is authorized to carry on." 31 Fed.Reg. 11459 (1966). The Comptroller declined to read the categorical prohibition on national bank ownership of stock to foreclose bank ownership of operating subsidiaries, finding authority for this aggressive interpretation of national bank authority in the "incidental powers" provision of 12 U.S.C. § 24 Seventh. See 31 Fed.Reg. 11460. While Congress eventually restricted some of the new corporate structures,[13] it neither disavowed nor endorsed the Comptroller's position on national bank ownership of operating subsidiaries. Notwithstanding the congressional silence, in 1996 the OCC once again attempted to expand national banks' ownership powers. The agency issued a regulation permitting national bank operating subsidiaries to undertake activities that the bank was not allowed to engage in directly. 12 CFR §§ 5.34(d), (f) (1997) (authorizing national banks to "acquire or establish an operating subsidiary to engage in [activities] different from that permissible for the parent national bank," so long as those activities are "part of or incidental to the business of banking, as determined by the Comptroller of the Currency"); see also 61 Fed. Reg. 60342 (1996). Congress overruled this OCC regulation in 1999 in the Gramm-Leach-Bliley Act (GLBA), 113 Stat. 1338. The GLBA was a seminal piece of banking legislation inasmuch as it repealed the Glass-Steagall Act's ban on affiliations between commercial and investment banks. See § 101, id., at 1341. More relevant to this case, however, the GLBA addressed the powers of national banks to own subsidiary corporations. The Act provided that any national bank subsidiary engaging in activities forbidden to the parent bank would be considered a "financial subsidiary," § 121, id., at 1380, and would be subjected to heightened regulatory obligations, see, e.g., 12 U.S.C. § 371c-1(a)(1). The GLBA's definition of "financial subsidiaries" excluded those subsidiaries that "engag[e] solely in activities that national banks are permitted to engage in directly and are conducted subject to the same terms and conditions that govern the conduct of such activities by national banks." § 24a(g)(3). By negative implication, then, only subsidiaries engaging in purely national bank activities—which the OCC had termed "operating subsidiaries," but which the GLBA never mentions by name—could avoid being subjected to the restrictions that applied to financial subsidiaries. Compare *1578 § 371c(b)(2) (exempting subsidiaries from certain regulatory restrictions) with § 371c(e) (clarifying that financial subsidiaries are not to be treated as "subsidiaries"). Taken together, these provisions worked a rejection of the OCC's position that an operating subsidiary could engage in activities that national banks could not engage in directly.[14] See § 24a(g)(3). Apart from this implicit rejection of the OCC's 1996 regulation, however, the GLBA does not even mention operating subsidiaries. In sum, Congress itself has never authorized national banks to use subsidiaries incorporated under state law to perform traditional banking functions. Nor has it authorized OCC to "license" any state-chartered entity to do so. The fact that it may have acquiesced in the OCC's expansive interpretation of its authority is a plainly insufficient basis for finding preemption. III It is familiar learning that "[t]he purpose of Congress is the ultimate touchstone of pre-emption analysis." Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516, 112 S. Ct. 2608, 120 L. Ed. 2d 407 (1992) (internal quotation marks omitted). In divining that congressional purpose, I would have hoped that the Court would hew both to the NBA's text and to the basic rule, central to our federal system, that "[i]n all pre-emption cases ... we `start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.'" Medtronic, Inc. v. Lohr, 518 U.S. 470, 485, 116 S. Ct. 2240, 135 L. Ed. 2d 700 (1996) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S. Ct. 1146, 91 L. Ed. 1447 (1947)). Had it done so, it could have avoided the untenable conclusion that Congress meant the NBA to preempt the state laws at issue here. The NBA in fact evinces quite the opposite congressional purpose. It provides in 12 U.S.C. § 484(a) that "[n]o national bank shall be subject to any visitorial powers except as authorized by Federal law." Although this exemption from state visitorial authority has been in place for more than 140 years, see § 54, 13 Stat. 116 (national banks "shall not be subject to any other visitorial powers than such as are authorized by this act"), it is significant that Congress has never extended 12 U.S.C. § 484(a)'s preemptive blanket to cover national bank subsidiaries. This is not, contrary to the Court's suggestion, see ante, at 1571-1572, some kind of oversight. As the complex history of the banking laws demonstrates, Congress has legislated extensively with respect to national bank "affiliates"—an operating subsidiary is one type of affiliate[15]—and has moreover given the OCC extensive supervisory powers over those affiliates, see § 481 (providing that a federal examiner "shall have power to make a thorough examination of all the affairs of [a national bank] affiliate, and in doing so he shall *1579 have power ... to make a report of his findings to the Comptroller of the Currency"). That Congress lavished such attention on national bank affiliates and conferred such far-reaching authority on the OCC without ever expanding the scope of § 484(a) speaks volumes about Congress' preemptive intent, or rather its lack thereof. Consistent with our presumption against preemption—a presumption I do not understand the Court to reject—I would read § 484(a) to reflect Congress' considered judgment not to preempt the application of state visitorial laws to national bank "affiliates." Instead, the Court likens § 484(a) to a congressional afterthought, musing that it merely "recogniz[es] the burdens and undue duplication that state controls could produce." Ante, at 1568. By that logic, I take it the Court believes that the NBA would impliedly preempt all state visitorial laws as applied to national banks even if § 484(a) did not exist. That is surprising and unlikely. Not only would it reduce the NBA's express preemption provision to so much surplusage, but it would give Congress' silence greater statutory dignity than an express command. Perhaps that explains why none of the four Circuits to have addressed this issue relied on the preemptive force of the NBA itself. Each instead asked whether the OCC's regulations preempted state laws.[16] Stranger still, the Court's reasoning would suggest that operating subsidiaries have been exempted from state visitorial authority from the moment the OCC first authorized them in 1966. See 31 Fed.Reg. 11459. Yet if that were true, surely at some point over the last 40 years some national bank would have gone to court to spare its subsidiaries from the yoke of state regulation; national banks are neither heedless of their rights nor shy of litigation. But respondents point us to no such cases that predate the OCC's preemption regulations. The Court licenses itself to ignore § 484(a)'s limits by reasoning that "when state prescriptions significantly impair the exercise of authority, enumerated or incidental under the NBA, the State's regulations must give way." Ante, at 1567. But it intones this "significant impairment" refrain without remembering that it merely provides a useful tool—not the only tool, and not even the best tool—to discover congressional intent. As we explained in Barnett Bank, this Court "take[s] the view that normally Congress would not want States to forbid, or to impair significantly, the exercise of a power that Congress has explicitly granted." 517 U.S., at 33, 116 S. Ct. 1103 (emphasis added). But any assumption about what Congress "normally" wants is of little moment when Congress has said exactly what it wants. The Court also puts great weight on Barnett Bank's reference to our "history... of interpreting grants of both enumerated and incidental `powers' to national banks as grants of authority not normally limited by, but rather ordinarily pre-empting, contrary state law." Id., at 32, 116 S. Ct. 1103. The Court neglects to mention that Barnett Bank is quite clear that this interpretive rule applies only when Congress has failed (as it often does) to manifest an explicit preemptive intent. Id., at 31, 116 S. Ct. 1103. "In that event, courts must consider whether the federal statute's `structure and purpose,' or nonspecific statutory language, nonetheless reveal a *1580 clear, but implicit, pre-emptive intent." Ibid. (emphasis added). Barnett Bank nowhere holds that we can ignore strong indicia of congressional intent whenever a state law arguably trenches on national bank powers. After all, the case emphasized that the question of preemption "is basically one of congressional intent. Did Congress, in enacting the Federal Statute, intend to exercise its constitutionally delegated authority to set aside the laws of a State?" Id., at 30, 116 S. Ct. 1103. The answer here is a resounding no. Even if it were appropriate to delve into the significant impairment question, the history of this very case confirms that neither the Mortgage Brokers, Lenders, and Services Licensing Act, Mich. Comp. Laws Ann. § 445.1651 et seq. (West 2002 and Supp.2006), nor the Secondary Mortgage Loan Act, § 493.51 et seq. (West 2005), conflicts with "the letter or the general objects and purposes of Congressional legislation." Davis v. Elmira Savings Bank, 161 U.S. 275, 290, 16 S. Ct. 502, 40 L. Ed. 700 (1896). Enacted to protect consumers from mortgage lending abuses, the Acts require mortgage brokers, mortgage servicers, and mortgage lenders to register with the State, §§ 445.1652(1) (West Supp.2006), 493.52(1) (West 2005), to submit certain financial statements, §§ 445.1657(2) (West 2002), 493.56a(2) (West 2005), and to submit to state visitorial oversight, §§ 445.1661 (West 2002), 493.56b (West 2005). Because the Acts expressly provide that they do not apply to "depository financial institution[s]," § 445.1675(a) (West 2002), neither national nor state banks are covered.[17] The statute therefore covers only nonbank companies incorporated under state law.[18] Respondent Wachovia Mortgage Corporation has never engaged in the core banking business of accepting deposits. In 1997, when Wachovia Mortgage was first licensed to do business in Michigan, it was owned by a holding company that also owned the respondent Wachovia Bank, N.A. (Neither the holding company nor the Bank did business in Michigan.) There is no evidence, and no reason to believe, that compliance with the Michigan statutes imposed any special burdens on Wachovia Mortgage's activities, or that the transfer in 2003 of its ownership from the holding company to the Bank required it to make any changes whatsoever in its methods of doing business. Neither before nor after that transfer was there any discernible federal interest in granting the company immunity from regulations that applied evenhandedly to its competitors. The mere fact that its activities may also be performed by its banking parent provides at best a feeble justification for immunizing it from state regulation. And it is a justification that the longstanding congressional "policy of competitive equality" clearly outweighs. See Plant City, 396 U.S., at 133, 90 S. Ct. 337. Again, however, it is beside the point whether in the Court's judgment the Michigan laws will hamper national banks' ability to carry out their banking functions through operating subsidiaries. It is Congress' *1581 judgment that matters here, and Congress has in the NBA preempted only those laws purporting to lodge with state authorities visitorial power over national banks. 12 U.S.C. § 484(a). In my view, the Court's eagerness to infuse congressional silence with preemptive force threatens the vitality of most state laws as applied to national banks—a result at odds with the long and unbroken history of dual state and federal authority over national banks, not to mention our federal system of government. It is especially troubling that the Court so blithely preempts Michigan laws designed to protect consumers. Consumer protection is quintessentially a "field which the States have traditionally occupied," Rice, 331 U.S., at 230, 67 S. Ct. 1146;[19] the Court should therefore have been all the more reluctant to conclude that the "clear and manifest purpose of Congress" was to set aside the laws of a sovereign State, ibid. IV Respondents maintain that even if the NBA lacks preemptive force, the GLBA's use of the phrase "same terms and conditions" reflects a congressional intent to preempt state laws as they apply to the mortgage lending activities of operating subsidiaries. See 12 U.S.C. § 24a(g)(3). Indeed, the Court obliquely suggests as much, salting its analysis of the NBA with references to the GLBA. See ante, at 1570-1571, 1571-1572. Even a cursory review of the GLBA's text shows that it cannot bear the preemptive weight respondents (and perhaps the Court) would assign to it. The phrase "same terms and conditions" appears in the definition of "financial subsidiary," not in a provision of the statute conferring national bank powers. Even there, it serves only to describe what a financial subsidiary is not. See § 24a(g)(3) (defining financial subsidiary as any subsidiary "other than a subsidiary that ... engages solely in activities that national banks are permitted to engage in directly and are conducted subject to the same terms and conditions that govern the conduct of such activities by national banks"). Apart from this slanting reference, the GLBA never mentions operating subsidiaries. Far from a demonstration that the "clear and manifest purpose of Congress" was to preempt the type of law at issue here, Rice, 331 U.S., at 230, 67 S. Ct. 1146, the "same terms and conditions" language at most reflects an uncontroversial acknowledgment that operating subsidiaries of national banks are subject to the same federal oversight as their national bank parents.[20] It has nothing to do with preemption. Congress in fact disavowed any such preemptive intent. Section 104 of the GLBA is titled "Operation of State Law," 113 Stat. 1352, and it devotes more than 3,000 words to explaining which state laws Congress meant the GLBA to preempt. Leave aside the oddity of a Congress that addresses preemption in exquisite detail in one provision of the GLBA but (according to respondents) uses only four words to express a preemptive intent elsewhere in the statute. More importantly, § 104(d)(4) provides that "[n]o State statute ... shall be preempted" by the GLBA unless that statute has a disparate impact on federally chartered depository institutions, "prevent[s] *1582 a depository institution or affiliate thereof from engaging in activities authorized or permitted by this Act," or "conflict[s] with the intent of this Act generally to permit affiliations that are authorized or permitted by Federal law." Id., at 1357 (emphasis added) (codified at 15 U.S.C. § 6701(d)(4)). No one claims that the Michigan laws at issue here are discriminatory, forbid affiliations, or "prevent" any operating subsidiary from engaging in banking activities. It necessarily follows that the GLBA does not preempt them. Even assuming that the phrase has something to do with preemption, it is simply not the case that the nonencroachment of state regulation is a "term and condition" of engagement in the business of banking. As a historical matter, state laws have always applied to national banks and have often encroached on the business of banking. See National Bank, 9 Wall., at 362, 19 L. Ed. 701 (observing that national banks "are subject to the laws of the State, and are governed in their daily course of business far more by the laws of the State than of the nation"). The Court itself acknowledges that state usury, contract, and property law govern the activities of national banks and their subsidiaries, ante, at 1566-1567, notwithstanding that they vary across "all States in which the banks operate," ante, at 1568. State law has always provided the legal backdrop against which national banks make real estate loans, and "[t]he fact that the banking agencies maintain a close surveillance of the industry with a view toward preventing unsound practices that might impair liquidity or lead to insolvency does not make federal banking regulation all-pervasive." United States v. Philadelphia Nat. Bank, 374 U.S. 321, 352, 83 S. Ct. 1715, 10 L. Ed. 2d 915 (1963). V In my view, the most pressing questions in this case are whether Congress has delegated to the Comptroller of the Currency the authority to preempt the laws of a sovereign State as they apply to operating subsidiaries, and if so, whether that authority was properly exercised here. See 12 CFR § 7.4006 (2006) ("State laws apply to national bank operating subsidiaries to the same extent that those laws apply to the parent national bank"). Without directly answering either question, the Court concludes that preemption is the "necessary consequence" of various congressional statutes. Ante, at 1571-1572. Because I read those statutes differently, I must consider (as did the four Circuits to have addressed this issue) whether an administrative agency can assume the power to displace the duly enacted laws of a state legislature. To begin with, Congress knows how to authorize executive agencies to preempt state laws.[21] It has not done so here. Nor does the statutory provision authorizing banks to engage in certain lines of business that are "incidental" to their primary business of accepting and managing the funds of depositors expressly or implicitly grant the OCC the power to immunize *1583 banks or their subsidiaries from state regulation.[22] See 12 U.S.C. § 24 Seventh. For there is a vast and obvious difference between rules authorizing or regulating conduct and rules granting immunity from regulation. The Comptroller may well have the authority to decide whether the activities of a mortgage broker, a real estate broker, or a travel agent should be characterized as "incidental" to banking, and to approve a bank's entry into those businesses, either directly or through its subsidiaries. See, e.g., NationsBank of N.C., N.A. v. Variable Annuity Life Ins. Co., 513 U.S. 251, 258, 115 S. Ct. 810, 130 L. Ed. 2d 740 (1995) (upholding the OCC's interpretation of the "incidental powers" provision to permit national banks to serve as agents in annuity sales). But that lesser power does not imply the far greater power to immunize banks or their subsidiaries from state laws regulating the conduct of their competitors.[23] As we said almost 40 years ago, "the congressional policy of competitive equality with its deference to state standards" is not "open to modification by the Comptroller of the Currency." Plant City, 396 U.S., at 138, 90 S. Ct. 337.[24] Were I inclined to assume (and I am not) that congressional silence should be read as a conferral of preemptive authority, I would not find that the OCC has actually exercised any such authority here. When the agency promulgated 12 CFR § 7.4006, it explained that "[t]he section itself does not effect preemption of any *1584 State law; it reflects the conclusion we believe a Federal court would reach, even in the absence of the regulation ... ." 66 Fed.Reg. 34790 (2001) (emphasis added). Taking the OCC at its word, then, § 7.4006 has no preemptive force of its own, but merely predicts how a federal court's analysis will proceed. Even if the OCC did intend its regulation to preempt the state laws at issue here, it would still not merit Chevron deference. No case from this Court has ever applied such a deferential standard to an agency decision that could so easily disrupt the federal-state balance. To be sure, expert agency opinions as to which state laws conflict with a federal statute may be entitled to "some weight," especially when "the subject matter is technical" and "the relevant history and background are complex and extensive." Geier v. American Honda Motor Co., 529 U.S. 861, 883, 120 S. Ct. 1913, 146 L. Ed. 2d 914 (2000). But "[u]nlike Congress, administrative agencies are clearly not designed to represent the interests of States, yet with relative ease they can promulgate comprehensive and detailed regulations that have broad preemption ramifications for state law." Id., at 908, 120 S. Ct. 1913 (STEVENS, J., dissenting).[25] For that reason, when an agency purports to decide the scope of federal preemption, a healthy respect for state sovereignty calls for something less than Chevron deference. See 529 U.S., at 911-912, 120 S. Ct. 1913; see also Medtronic, 518 U.S., at 512, 116 S. Ct. 2240 (O'Connor, J., concurring in part and dissenting in part) ("It is not certain that an agency regulation determining the pre-emptive effect of any federal statute is entitled to deference"). In any event, neither of the two justifications the OCC advanced when it promulgated 12 CFR § 7.4006 withstand Chevron analysis. First, the OCC observed that the GLBA "expressly acknowledged the authority of national banks to own subsidiaries" that conduct national bank activities "`subject to the same terms and conditions that govern the conduct of such activities by national banks.'" 66 Fed.Reg. 34788 (quoting 12 U.S.C. § 24a(g)(3)). The agency also noted that it had folded the "`same terms and conditions'" language into an implementing regulation, 66 Fed. Reg. 34788 (citing 12 CFR § 5.34(e)(3) (2001)). According to the OCC, "[a] fundamental component of these descriptions of the characteristics of operating subsidiaries in GLBA and the OCC's rule is that state laws apply to operating subsidiaries to the same extent as they apply to the parent national bank." 66 Fed.Reg. 34788. This is incorrect. As explained above, the GLBA's offhand use of the "same terms and conditions" language says nothing about preemption. See supra, at 1581-1582. Nor can the OCC's incorporation of that language into a regulation support the agency's position: "Simply put, the existence of a parroting regulation does not change the fact that the question here is not the meaning of the regulation but the meaning of the statute." Gonzales v. Oregon, 546 U.S. 243, 257, 126 S. Ct. 904, 163 L. Ed. 2d 748 (2006). The OCC's argument to the contrary is particularly surprising given that when it promulgated its "same terms and conditions" regulation, it said not one word about preemption or the federalism implications of its rule—an inexplicable elision if a "fundamental component" of the phrase is the need to operate unfettered by state oversight. Compare 65 Fed.Reg. 12905-12910 (2000), with Exec. Order No. 13132, §§ 2, 4, 64 Fed. Reg. 43255, 43257 (1999) (requiring agencies *1585 to explicitly consider the "federalism implications" of their chosen policies and to hesitate before preempting state laws). Second, the OCC describes operating subsidiaries "as the equivalent of departments or divisions of their parent banks," 66 Fed.Reg. 34788, which, through the operation of 12 U.S.C. § 484(a), would not be subject to state visitorial powers. The OCC claims that national banks might desire to conduct their business through operating subsidiaries for the purposes of "controlling operations costs, improving effectiveness of supervision, more accurate determination of profits, decentralizing management decisions [and] separating particular operations of the bank from other operations." Brief for United States as Amicus Curiae 19 (quoting 31 Fed.Reg. 11460). It is obvious, however, that a national bank could realize all of those benefits through the straightforward expedient of dissolving the corporation and making it in fact a "department" or a "division" of the parent bank. Rather, the primary advantage of maintaining an operating subsidiary as a separate corporation is that it shields the national bank from the operating subsidiaries' liabilities. United States v. Bestfoods, 524 U.S. 51, 61, 118 S. Ct. 1876, 141 L. Ed. 2d 43 (1998) ("It is a general principle of corporate law deeply ingrained in our economic and legal systems that a parent corporation ... is not liable for the acts of its subsidiary" (internal quotation marks omitted)). For that reason, the OCC's regulation is about far more than mere "corporate structure," ante, at 1570-1571, or "internal governance," ante, at 1573 (citing Wells Fargo Bank, N.A. v. Boutris, 419 F.3d 949, 960 (C.A.9 2005)); see also Dole Food Co. v. Patrickson, 538 U.S. 468, 474, 123 S. Ct. 1655, 155 L. Ed. 2d 643 (2003) ("In issues of corporate law structure often matters"). It is about whether a state corporation can avoid complying with state regulations, yet nevertheless take advantage of state laws insulating its owners from liability. The federal interest in protecting depositors in national banks from their subsidiaries' liabilities surely does not justify a grant of immunity from laws that apply to competitors. Indeed, the OCC's regulation may drive companies seeking refuge from state regulation into the arms of federal parents, harm those state competitors who are not lucky enough to find a federal benefactor, and hamstring States' ability to regulate the affairs of state corporations. As a result, the OCC's regulation threatens both the dual banking system and the principle of competitive equality that is its cornerstone. VI The novelty of today's holding merits a final comment. Whatever the Court says, this is a case about an administrative agency's power to preempt state laws. I agree with the Court that the Tenth Amendment does not preclude the exercise of that power. But the fact that that Amendment was included in the Bill of Rights should nevertheless remind the Court that its ruling affects the allocation of powers among sovereigns. Indeed, the reasons for adopting that Amendment are precisely those that undergird the well-established presumption against preemption. With rare exception, we have found preemption only when a federal statute commanded it, see Cipollone, 505 U.S., at 517, 112 S. Ct. 2608, when a conflict between federal and state law precluded obedience to both sovereigns, see Florida Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142-143, 83 S. Ct. 1210, 10 L. Ed. 2d 248 (1963), or when a federal statute so completely occupied a field that it left no room *1586 for additional state regulation, see Napier v. Atlantic Coast Line R. Co., 272 U.S. 605, 613, 47 S. Ct. 207, 71 L. Ed. 432 (1926). Almost invariably the finding of preemption has been based on this Court's interpretation of statutory language or of regulations plainly authorized by Congress. Never before have we endorsed administrative action whose sole purpose was to preempt state law rather than to implement a statutory command. Accordingly, I respectfully dissent.

Congress has enacted no legislation immunizing national bank subsidiaries from compliance with nondiscriminatory state laws regulating the business activities of mortgage brokers and lenders. Nor has it authorized an executive agency to preempt such state laws whenever it concludes that they interfere with national bank activities. Notwithstanding the absence of relevant statutory authority, today the Court endorses an agency's incorrect determination that the laws of a sovereign State must yield to federal power. The significant impact of the Court's decision on the federal-state balance and the dual banking system makes it appropriate to set forth in full the reasons for my dissent. I The National Act (or NBA), authorized the incorporation of national banks, 5, and granted them "all such incidental powers as shall be necessary to carry on the business of banking," 8, (codified at 12 U.S.C. 24 Seventh), subject to regulatory oversight by the Comptroller of the Currency, 54, To maintain a meaningful role for state legislation and for state corporations that did not engage in core banking activities, Congress circumscribed national bank authority. Notably, national banks were expressly forbidden from making mortgage loans, 28,[1] Moreover, the shares of national *1574 banks, as well their real estate holdings, were subject to nondiscriminatory state taxation, 41, ; and while national banks could lend money, state law capped the interest rates they could charge, 20, Originally, it was anticipated that "existing banks would surrender their state charters and re-incorporate under the terms of the new law with national charters."[2] That did not happen. Instead, after an initial post-National Act decline, state-chartered institutions thrived.[3] What emerged was the competitive mix of state and national banks known as the dual banking system. This Court has consistently recognized that because federal law is generally interstitial, national banks must comply with most of the same rules as their state counterparts. As early as we articulated the principle that has remained the lodestar of our jurisprudence: that national banks "are only exempted from State legislation, so far as that legislation may interfere with, or impair their efficiency in performing the functions by which they are designed to serve that government. They are subject to the laws of the State, and are governed in their daily course of business far more by the laws of the State than of the nation. All their contracts are governed and construed by State laws. Their acquisition and transfer of property, their right to collect their debts, and their liability to be sued for debts, are all based on State law. It is only when the State law incapacitates the banks from discharging their duties to the government that it becomes unconstitutional." National[4] Until today, we have remained faithful to the principle that nondiscriminatory laws of general application that do not "forbid" or "impair significantly" national bank activities should not be preempted. See, e.g., Barnett of Marion Cty.,[5] Nor is the Court alone in recognizing the vital role that state legislation plays in the dual banking system. Although the dual banking system's main virtue is its divergent treatment of national and state *1575 banks,[6] Congress has consistently recognized that state law must usually govern the activities of both national and state banks for the dual banking system to operate effectively. As early as 1934, Justice Brandeis observed for the Court that this congressional recognition is embodied in a long string of statutes: "The policy of equalization was adopted in the National Act of 1864, and has ever since been applied, in the provision concerning taxation. In amendments to that act and in the Federal Reserve Act and amendments thereto the policy is expressed in provisions conferring power to establish branches; in those conferring power to act as fiduciary; in those concerning interest on deposits; and in those concerning capitalization. It appears also to have been of some influence in securing the grant in 1913 of the power to loan on mortgage." (footnotes, with citations to relevant statutes, omitted).[7] For the same reasons, we observed in First Nat. in Plant 1, 90 S. Ct. 7, that "[t]he policy of competitive equality is firmly embedded in the statutes governing the national banking system." So firmly embedded, in fact, that "the congressional policy of competitive equality with its deference to state standards" is not "open to modification by the Comptroller of the Currency." 90 S. Ct. 7. II Although the dual banking system has remained intact, Congress has radically transformed the national bank system from its Civil War antecedent and brought considerably more federal authority to bear on state-chartered institutions. Yet despite all the changes Congress has made to the national bank system, and despite its exercise of federal power over state banks, it has never preempted state laws like those at issue in this case. Most significantly, in 1913 Congress established the Federal Reserve System to oversee federal monetary policy through its influence over the availability of credit. Federal Reserve Act 2, 9, 259. The Act required national banks and permitted state banks to become Federal Reserve member banks, and subjected all member banks to Federal Reserve regulations and oversight. Also of signal importance, after the banking system collapsed during the Great Depression, Congress required all member banks to obtain deposit insurance from the newly established Federal Deposit Insurance Corporation. ing Act of 19 (or Glass-Steagall Act), 8, ; see also ing Act of 1935, Although both of these steps meant that many state banks were subjected to significant federal regulation,[8] "the state banking system continued along with the national *1576 banking system, with no attempt to exercise preemptive federal regulatory authority over the activities of the existing state banks." M. Malloy, ing and Financial Services Law 48 In addition to these systemic overhauls, Congress has over time modified the powers of national banks. The changes are too various to recount in detail, but two are of particular importance to this case. First, Congress has gradually relaxed its prohibition on mortgage lending by national banks. In 1913, Congress permitted national banks to make loans secured by farm land, Federal Reserve Act, 24, and in succeeding years, their mortgage-lending power was enlarged to cover loans on real estate in the vicinity of the bank, Act of Sept. 7, 1916, and loans "secured by first liens upon forest tracts which are properly managed in all respects," Act of Aug. 15, 1953, ch. 510, Congress substantially expanded national banks' power to make real estate loans in 1974, see Housing and Community Development Act, Title VII, 711, 88 Stat 716, and in 1982 it enacted the broad language, now codified at 12 U.S.C. 371(a), authorizing national banks to make "loans secured by liens on interests in real estate." Garn-St Germain Depository Institutions Act of 1982, Title IV, 403, While these changes have enabled national banks to engage in more evenhanded competition with state banks, they certainly reflect no purpose to give them any competitive advantage.[9] Second, Congress has over the years both curtailed and expanded the ability of national banks to affiliate with other companies. In the early part of the century, banks routinely engaged in investment activities and affiliated with companies that did the same. The Glass-Steagall Act put an end to that. "[E]nacted in 19 to protect bank depositors from any repetition of the widespread bank closings that occurred during the Great Depression," Board of Governors, Glass-Steagall prohibited Federal Reserve member banks (both state and national) from affiliating with investment banks.[10] In Congress' view, the affiliates had engaged in speculative activities that in turn contributed to commercial banks' Depression-era failures.[11] It was this focus on the welfare of depositors—as opposed to stockholders—that provided the basis for legislative action designed to ensure bank solvency. A scant two years later, Congress forbade national banks from owning the *1577 shares of any company because of a similar fear that such ownership could undermine the safety and soundness of national banks:[12] "Except as hereinafter provided or otherwise permitted by law, nothing herein contained shall authorize the purchase by [a national bank] for its own account of any shares of stock of any corporation." ing Act of 1935, 308(b), That provision remains on the books today. See 12 U.S.C. 24 Seventh. These congressional restrictions did not forbid all affiliations, however, and national banks began experimenting with new corporate forms. One of those forms involved the national bank ownership of "operating subsidiaries." In 1966, the Comptroller of the Currency took the position "that a national bank may acquire and hold the controlling stock interest in a subsidiary operations corporation" so long as that corporation's "functions or activities are limited to one or several of the functions or activities that a national bank is authorized to carry on." 31 Fed.Reg. 11459 (1966). The Comptroller declined to read the categorical prohibition on national bank ownership of stock to foreclose bank ownership of operating subsidiaries, finding authority for this aggressive interpretation of national bank authority in the "incidental powers" provision of 12 U.S.C. 24 Seventh. See 31 Fed.Reg. 11460. While Congress eventually restricted some of the new corporate structures,[13] it neither disavowed nor endorsed the Comptroller's position on national bank ownership of operating subsidiaries. Notwithstanding the congressional silence, in the OCC once again attempted to expand national banks' ownership powers. The agency issued a regulation permitting national bank operating subsidiaries to undertake activities that the bank was not allowed to engage in directly. 12 CFR 5.34(d), (f) (1997) (authorizing national banks to "acquire or establish an operating subsidiary to engage in [activities] different from that permissible for the parent national bank," so long as those activities are "part of or incidental to the business of banking, as determined by the Comptroller of the Currency"); see also Fed. Reg. 60342 Congress overruled this OCC regulation in 1999 in the Gramm-Leach-Bliley Act (GLBA), 113 Stat. 18. The GLBA was a seminal piece of banking legislation inasmuch as it repealed the Glass-Steagall Act's ban on affiliations between commercial and investment banks. See 101, More relevant to this case, however, the GLBA addressed the powers of national banks to own subsidiary corporations. The Act provided that any national bank subsidiary engaging in activities forbidden to the parent bank would be considered a "financial subsidiary," 121, 0, and would be subjected to heightened regulatory obligations, see, e.g., 12 U.S.C. 371c-1(a)(1). The GLBA's definition of "financial subsidiaries" excluded those subsidiaries that "engag[e] solely in activities that national banks are permitted to engage in directly and are conducted subject to the same terms and conditions that govern the conduct of such activities by national banks." 24a(g)(3). By negative implication, then, only subsidiaries engaging in purely national bank activities—which the OCC had termed "operating subsidiaries," but which the GLBA never mentions by name—could avoid being subjected to the restrictions that applied to financial subsidiaries. Compare *1578 371c(b)(2) (exempting subsidiaries from certain regulatory restrictions) with 371c(e) (clarifying that financial subsidiaries are not to be treated as "subsidiaries"). Taken together, these provisions worked a rejection of the OCC's position that an operating subsidiary could engage in activities that national banks could not engage in directly.[14] See 24a(g)(3). Apart from this implicit rejection of the OCC's regulation, however, the GLBA does not even mention operating subsidiaries. In sum, Congress itself has never authorized national banks to use subsidiaries incorporated under state law to perform traditional banking functions. Nor has it authorized OCC to "license" any state-chartered entity to do so. The fact that it may have acquiesced in the OCC's expansive interpretation of its authority is a plainly insufficient basis for finding preemption. III It is familiar learning that "[t]he purpose of Congress is the ultimate touchstone of pre-emption analysis." In divining that congressional purpose, I would have hoped that the Court would hew both to the NBA's text and to the basic rule, central to our federal system, that "[i]n all pre-emption cases we `start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress.'" ). Had it done so, it could have avoided the untenable conclusion that Congress meant the NBA to preempt the state laws at issue here. The NBA in fact evinces quite the opposite congressional purpose. It provides in 12 U.S.C. 484(a) that "[n]o national bank shall be subject to any visitorial powers except as authorized by Federal law." Although this exemption from state visitorial authority has been in place for more than 140 years, see 54, it is significant that Congress has never extended 12 U.S.C. 484(a)'s preemptive blanket to cover national bank subsidiaries. This is not, contrary to the Court's suggestion, see ante, at 1571-1572, some kind of oversight. As the complex history of the banking laws demonstrates, Congress has legislated extensively with respect to national bank "affiliates"—an operating subsidiary is one type of affiliate[15]—and has moreover given the OCC extensive supervisory powers over those affiliates, see 481 (providing that a federal examiner "shall have power to make a thorough examination of all the affairs of [a national bank] affiliate, and in doing so he shall *1579 have power to make a report of his findings to the Comptroller of the Currency"). That Congress lavished such attention on national bank affiliates and conferred such far-reaching authority on the OCC without ever expanding the scope of 484(a) speaks volumes about Congress' preemptive intent, or rather its lack thereof. Consistent with our presumption against preemption—a presumption I do not understand the Court to reject—I would read 484(a) to reflect Congress' considered judgment not to preempt the application of state visitorial laws to national bank "affiliates." Instead, the Court likens 484(a) to a congressional afterthought, musing that it merely "recogniz[es] the burdens and undue duplication that state controls could produce." Ante, at 1568. By that logic, I take it the Court believes that the NBA would impliedly preempt all state visitorial laws as applied to national banks even if 484(a) did not exist. That is surprising and unlikely. Not only would it reduce the NBA's express preemption provision to so much surplusage, but it would give Congress' silence greater statutory dignity than an express command. Perhaps that explains why none of the four Circuits to have addressed this issue relied on the preemptive force of the NBA itself. Each instead asked whether the OCC's regulations preempted state laws.[16] Stranger still, the Court's reasoning would suggest that operating subsidiaries have been exempted from state visitorial authority from the moment the OCC first authorized them in 1966. See 31 Fed.Reg. 11459. Yet if that were true, surely at some point over the last 40 years some national bank would have gone to court to spare its subsidiaries from the yoke of state regulation; national banks are neither heedless of their rights nor shy of litigation. But respondents point us to no such cases that predate the OCC's preemption regulations. The Court licenses itself to ignore 484(a)'s limits by reasoning that "when state prescriptions significantly impair the exercise of authority, enumerated or incidental under the NBA, the State's regulations must give way." Ante, at 1567. But it intones this "significant impairment" refrain without remembering that it merely provides a useful tool—not the only tool, and not even the best tool—to discover congressional intent. As we explained in Barnett this Court "take[s] the view that normally Congress would not want States to forbid, or to impair significantly, the exercise of a power that Congress has explicitly granted." 517 U.S., at But any assumption about what Congress "normally" wants is of little moment when Congress has said exactly what it wants. The Court also puts great weight on Barnett 's reference to our "history. of interpreting grants of both enumerated and incidental `powers' to national banks as grants of authority not normally limited by, but rather ordinarily pre-empting, contrary state law." The Court neglects to mention that Barnett is quite clear that this interpretive rule applies only when Congress has failed (as it often does) to manifest an explicit preemptive intent. "In that event, courts must consider whether the federal statute's `structure and purpose,' or nonspecific statutory language, nonetheless reveal a *1580 clear, but implicit, pre-emptive intent." Barnett nowhere holds that we can ignore strong indicia of congressional intent whenever a state law arguably trenches on national bank powers. After all, the case emphasized that the question of preemption "is basically one of congressional intent. Did Congress, in enacting the Federal Statute, intend to exercise its constitutionally delegated authority to set aside the laws of a State?" The answer here is a resounding no. Even if it were appropriate to delve into the significant impairment question, the history of this very case confirms that neither the Mortgage Brokers, Lenders, and Services Licensing Act, Mich. Comp. Laws Ann. 445.1651 et seq. nor the Secondary Mortgage Loan Act, 493.51 et seq. conflicts with "the letter or the general objects and purposes of Congressional legislation." 1 U.S. 275, Enacted to protect consumers from mortgage lending abuses, the Acts require mortgage brokers, mortgage servicers, and mortgage lenders to register with the State, 445.1652(1) 493.52(1) to submit certain financial statements, 445.1657(2) (West 2002), 493.56a(2) and to submit to state visitorial oversight, 445.16 (West 2002), 493.56b Because the Acts expressly provide that they do not apply to "depository financial institution[s]," 445.1675(a) (West 2002), neither national nor state banks are covered.[17] The statute therefore covers only nonbank companies incorporated under state law.[18] Respondent Wachovia Mortgage Corporation has never engaged in the core banking business of accepting deposits. In 1997, when Wachovia Mortgage was first licensed to do business in Michigan, it was owned by a holding company that also owned the respondent Wachovia N.A. (Neither the holding company nor the did business in Michigan.) There is no evidence, and no reason to believe, that compliance with the Michigan statutes imposed any special burdens on Wachovia Mortgage's activities, or that the transfer in of its ownership from the holding company to the required it to make any changes whatsoever in its methods of doing business. Neither before nor after that transfer was there any discernible federal interest in granting the company immunity from regulations that applied evenhandedly to its competitors. The mere fact that its activities may also be performed by its banking parent provides at best a feeble justification for immunizing it from state regulation. And it is a justification that the longstanding congressional "policy of competitive equality" clearly outweighs. See Plant 396 U.S., at 1, 90 S. Ct. 7. Again, however, it is beside the point whether in the Court's judgment the Michigan laws will hamper national banks' ability to carry out their banking functions through operating subsidiaries. It is Congress' *1581 judgment that matters here, and Congress has in the NBA preempted only those laws purporting to lodge with state authorities visitorial power over national banks. 12 U.S.C. 484(a). In my view, the Court's eagerness to infuse congressional silence with preemptive force threatens the vitality of most state laws as applied to national banks—a result at odds with the long and unbroken history of dual state and federal authority over national banks, not to mention our federal system of government. It is especially troubling that the Court so blithely preempts Michigan laws designed to protect consumers. Consumer protection is quintessentially a "field which the States have traditionally occupied," Rice, 1 U.S., at ;[19] the Court should therefore have been all the more reluctant to conclude that the "clear and manifest purpose of Congress" was to set aside the laws of a sovereign State, IV Respondents maintain that even if the NBA lacks preemptive force, the GLBA's use of the phrase "same terms and conditions" reflects a congressional intent to preempt state laws as they apply to the mortgage lending activities of operating subsidiaries. See 12 U.S.C. 24a(g)(3). Indeed, the Court obliquely suggests as much, salting its analysis of the NBA with references to the GLBA. See ante, at 1570-1571, 1571-1572. Even a cursory review of the GLBA's text shows that it cannot bear the preemptive weight respondents (and perhaps the Court) would assign to it. The phrase "same terms and conditions" appears in the definition of "financial subsidiary," not in a provision of the statute conferring national bank powers. Even there, it serves only to describe what a financial subsidiary is not. See 24a(g)(3) (defining financial subsidiary as any subsidiary "other than a subsidiary that engages solely in activities that national banks are permitted to engage in directly and are conducted subject to the same terms and conditions that govern the conduct of such activities by national banks"). Apart from this slanting reference, the GLBA never mentions operating subsidiaries. Far from a demonstration that the "clear and manifest purpose of Congress" was to preempt the type of law at issue here, Rice, 1 U.S., at the "same terms and conditions" language at most reflects an uncontroversial acknowledgment that operating subsidiaries of national banks are subject to the same federal oversight as their national bank parents.[20] It has nothing to do with preemption. Congress in fact disavowed any such preemptive intent. Section 104 of the GLBA is titled "Operation of State Law," and it devotes more than 3,000 words to explaining which state laws Congress meant the GLBA to preempt. Leave aside the oddity of a Congress that addresses preemption in exquisite detail in one provision of the GLBA but (according to respondents) uses only four words to express a preemptive intent elsewhere in the statute. More importantly, 104(d)(4) provides that "[n]o State statute shall be preempted" by the GLBA unless that statute has a disparate impact on federally chartered depository institutions, "prevent[s] *1582 a depository institution or affiliate thereof from engaging in activities authorized or permitted by this Act," or "conflict[s] with the intent of this Act generally to permit affiliations that are authorized or permitted by Federal law." (codified at 15 U.S.C. 6701(d)(4)). No one claims that the Michigan laws at issue here are discriminatory, forbid affiliations, or "prevent" any operating subsidiary from engaging in banking activities. It necessarily follows that the GLBA does not preempt them. Even assuming that the phrase has something to do with preemption, it is simply not the case that the nonencroachment of state regulation is a "term and condition" of engagement in the business of banking. As a historical matter, state laws have always applied to national banks and have often encroached on the business of banking. See National 9 Wall., at (observing that national banks "are subject to the laws of the State, and are governed in their daily course of business far more by the laws of the State than of the nation"). The Court itself acknowledges that state usury, contract, and property law govern the activities of national banks and their subsidiaries, ante, at 1566-1567, notwithstanding that they vary across "all States in which the banks operate," ante, at 1568. State law has always provided the legal backdrop against which national banks make real estate loans, and "[t]he fact that the banking agencies maintain a close surveillance of the industry with a view toward preventing unsound practices that might impair liquidity or lead to insolvency does not make federal banking regulation all-pervasive." United States v. Philadelphia Nat. V In my view, the most pressing questions in this case are whether Congress has delegated to the Comptroller of the Currency the authority to preempt the laws of a sovereign State as they apply to operating subsidiaries, and if so, whether that authority was properly exercised here. See 12 CFR 7.4006 Without directly answering either question, the Court concludes that preemption is the "necessary consequence" of various congressional statutes. Ante, at 1571-1572. Because I read those statutes differently, I must consider (as did the four Circuits to have addressed this issue) whether an administrative agency can assume the power to displace the duly enacted laws of a state legislature. To begin with, Congress knows how to authorize executive agencies to preempt state laws.[21] It has not done so here. Nor does the statutory provision authorizing banks to engage in certain lines of business that are "incidental" to their primary business of accepting and managing the funds of depositors expressly or implicitly grant the OCC the power to immunize *1583 banks or their subsidiaries from state regulation.[22] See 12 U.S.C. 24 Seventh. For there is a vast and obvious difference between rules authorizing or regulating conduct and rules granting immunity from regulation. The Comptroller may well have the authority to decide whether the activities of a mortgage broker, a real estate broker, or a travel agent should be characterized as "incidental" to banking, and to approve a bank's entry into those businesses, either directly or through its subsidiaries. See, e.g., Nations of N.C., But that lesser power does not imply the far greater power to immunize banks or their subsidiaries from state laws regulating the conduct of their competitors.[23] As we said almost 40 years ago, "the congressional policy of competitive equality with its deference to state standards" is not "open to modification by the Comptroller of the Currency." Plant 396 U.S., 90 S. Ct. 7.[24] Were I inclined to assume (and I am not) that congressional silence should be read as a conferral of preemptive authority, I would not find that the OCC has actually exercised any such authority here. When the agency promulgated 12 CFR 7.4006, it explained that "[t]he section itself does not effect preemption of any *1584 State law; it reflects the conclusion we believe a Federal court would reach, even in the absence of the regulation" 66 Fed.Reg. 34790 (2001) Taking the OCC at its word, then, 7.4006 has no preemptive force of its own, but merely predicts how a federal court's analysis will proceed. Even if the OCC did intend its regulation to preempt the state laws at issue here, it would still not merit Chevron deference. No case from this Court has ever applied such a deferential standard to an agency decision that could so easily disrupt the federal-state balance. To be sure, expert agency opinions as to which state laws conflict with a federal statute may be entitled to "some weight," especially when "the subject matter is technical" and "the relevant history and background are complex and extensive." 529 U.S. 8, But "[u]nlike Congress, administrative agencies are clearly not designed to represent the interests of States, yet with relative ease they can promulgate comprehensive and detailed regulations that have broad preemption ramifications for state law." (STEVENS, J., dissenting).[25] For that reason, when an agency purports to decide the scope of federal preemption, a healthy respect for state sovereignty calls for something less than Chevron deference. See -912, ; see also (O'Connor, J., concurring in part and dissenting in part) ("It is not certain that an agency regulation determining the pre-emptive effect of any federal statute is entitled to deference"). In any event, neither of the two justifications the OCC advanced when it promulgated 12 CFR 7.4006 withstand Chevron analysis. First, the OCC observed that the GLBA "expressly acknowledged the authority of national banks to own subsidiaries" that conduct national bank activities "`subject to the same terms and conditions that govern the conduct of such activities by national banks.'" 66 Fed.Reg. 34788 (quoting 12 U.S.C. 24a(g)(3)). The agency also noted that it had folded the "`same terms and conditions'" language into an implementing regulation, (citing 12 CFR 5.34(e)(3) (2001)). According to the OCC, "[a] fundamental component of these descriptions of the characteristics of operating subsidiaries in GLBA and the OCC's rule is that state laws apply to operating subsidiaries to the same extent as they apply to the parent national bank." 66 Fed.Reg. 34788. This is incorrect. As explained above, the GLBA's offhand use of the "same terms and conditions" language says nothing about preemption. See Nor can the OCC's incorporation of that language into a regulation support the agency's position: "Simply put, the existence of a parroting regulation does not change the fact that the question here is not the meaning of the regulation but the meaning of the statute." The OCC's argument to the contrary is particularly surprising given that when it promulgated its "same terms and conditions" regulation, it said not one word about preemption or the federalism implications of its rule—an inexplicable elision if a "fundamental component" of the phrase is the need to operate unfettered by state oversight. Compare 65 Fed.Reg. 15-12910 with Exec. Order No. 13132, 2, 4, 43 (1999) (requiring agencies *1585 to explicitly consider the "federalism implications" of their chosen policies and to hesitate before preempting state laws). Second, the OCC describes operating subsidiaries "as the equivalent of departments or divisions of their parent banks," 66 Fed.Reg. 34788, which, through the operation of 12 U.S.C. 484(a), would not be subject to state visitorial powers. The OCC claims that national banks might desire to conduct their business through operating subsidiaries for the purposes of "controlling operations costs, improving effectiveness of supervision, more accurate determination of profits, decentralizing management decisions [and] separating particular operations of the bank from other operations." Brief for United States as Amicus Curiae 19 (quoting 31 Fed.Reg. 11460). It is obvious, however, that a national bank could realize all of those benefits through the straightforward expedient of dissolving the corporation and making it in fact a "department" or a "division" of the parent bank. Rather, the primary advantage of maintaining an operating subsidiary as a separate corporation is that it shields the national bank from the operating subsidiaries' liabilities. United ("It is a general principle of corporate law deeply ingrained in our economic and legal systems that a parent corporation is not liable for the acts of its subsidiary" ). For that reason, the OCC's regulation is about far more than mere "corporate structure," ante, at 1570-1571, or "internal governance," ante, at 1573 ); see also Dole Food It is about whether a state corporation can avoid complying with state regulations, yet nevertheless take advantage of state laws insulating its owners from liability. The federal interest in protecting depositors in national banks from their subsidiaries' liabilities surely does not justify a grant of immunity from laws that apply to competitors. Indeed, the OCC's regulation may drive companies seeking refuge from state regulation into the arms of federal parents, harm those state competitors who are not lucky enough to find a federal benefactor, and hamstring States' ability to regulate the affairs of state corporations. As a result, the OCC's regulation threatens both the dual banking system and the principle of competitive equality that is its cornerstone. VI The novelty of today's holding merits a final comment. Whatever the Court says, this is a case about an administrative agency's power to preempt state laws. I agree with the Court that the Tenth Amendment does not preclude the exercise of that power. But the fact that that Amendment was included in the Bill of Rights should nevertheless remind the Court that its ruling affects the allocation of powers among sovereigns. Indeed, the reasons for adopting that Amendment are precisely those that undergird the well-established presumption against preemption. With rare exception, we have found preemption only when a federal statute commanded it, see or when a federal statute so completely occupied a field that it left no room *1586 for additional state regulation, see 3, Almost invariably the finding of preemption has been based on this Court's interpretation of statutory language or of regulations plainly authorized by Congress. Never before have we endorsed administrative action whose sole purpose was to preempt state law rather than to implement a statutory command. Accordingly, I respectfully dissent.

Justice Sotomayor

majority

Life Technologies Corp. v. Promega Corp.

2017-02-22

https://www.courtlistener.com/opinion/4374575/life-technologies-corp-v-promega-corp/

https://www.courtlistener.com/api/rest/v3/clusters/4374575/

2016-031

This case concerns the intersection of international supply chains and federal patent law. Section 271(f )(1) of the Patent Act of 1952 prohibits the supply from the United States of “all or a substantial portion” of the compo- nents of a patented invention for combination abroad. 35 U.S. C. §271(f )(1). We granted certiorari to determine whether a party that supplies a single component of a multicomponent invention for manufacture abroad can be held liable for infringement under §271(f )(1). 579 U. S. ___ (2016). We hold that a single component does not constitute a substantial portion of the components that can give rise to liability under §271(f )(1). Because only a single component of the patented invention at issue here was supplied from the United States, we reverse and remand. I A We begin with an overview of the patent in dispute. Although the science behind the patent is complex, a basic understanding suffices to resolve the question presented 2 LIFE TECHNOLOGIES CORP. v. PROMEGA CORP. Opinion of the Court by this case. The Tautz patent, U. S. Reissue Patent No. RE 37,984, claims a toolkit for genetic testing.1 The kit is used to take small samples of genetic material—in the form of nucleo- tide sequences that make up the molecule deoxyribonu- cleic acid (commonly referred to as “DNA”)—and then syn- thesize multiple copies of a particular nucleotide sequence. This process of copying, known as amplification, generates DNA profiles that can be used by law enforcement agen- cies for forensic identification and by clinical and research institutions around the world. For purposes of this litiga- tion, the parties agree that the kit covered by the Tautz patent contains five components: (1) a mixture of primers that mark the part of the DNA strand to be copied; (2) nucleotides for forming replicated strands of DNA; (3) an enzyme known as Taq polymerase; (4) a buffer solution for the amplification; and (5) control DNA.2 Respondent Promega Corporation was the exclusive licensee of the Tautz patent. Petitioner Life Technologies Corporation manufactured genetic testing kits.3 During the timeframe relevant here, Promega sublicensed the Tautz patent to Life Technologies for the manufacture and sale of the kits for use in certain licensed law enforcement fields worldwide. Life Technologies manufactured all but one component of the kits in the United Kingdom. It manufactured that component—the Taq polymerase—in —————— 1 TheTautz patent expired in 2015. The litigation thus concerns past acts of infringement only. 2 Because the parties here agree that the patented invention is made up of only these five components, we do not consider how to identify the “components” of a patent or whether and how that inquiry relates to the elements of a patent claim. 3 Applied Biosystems, LLC, and Invitrogen IP Holdings, Inc., are also petitioners in this proceeding and are wholly owned subsidiaries of Life Technologies Corporation. The agreement at issue here was originally between Promega and Applied Biosystems. 773 F. 3d 1338, 1344, n. 3 (CA Fed. 2014). Cite as: 580 U. S. ____ (2017) 3 Opinion of the Court the United States. Life Technologies shipped the Taq polymerase to its United Kingdom facility, where it was combined with the other four components of the kit. Four years into the agreement, Promega sued Life Technologies on the grounds that Life Technologies had infringed the patent by selling the kits outside the li- censed fields of use to clinical and research markets. As relevant here, Promega alleged that Life Technologies’ supply of the Taq polymerase from the United States to its United Kingdom manufacturing facilities triggered liabil- ity under §271(f )(1). B At trial, the parties disputed the scope of §271(f )(1)’s prohibition against supplying all or a substantial portion of the components of a patented invention from the United States for combination abroad. Section 271(f )(1)’s full text reads: “Whoever without authority supplies or causes to be supplied in or from the United States all or a substan- tial portion of the components of a patented invention, where such components are uncombined in whole or in part, in such manner as to actively induce the com- bination of such components outside of the United States in a manner that would infringe the patent if such combination occurred within the United States, shall be liable as an infringer.” The jury returned a verdict for Promega, finding that Life Technologies had willfully infringed the patent. Life Technologies then moved for judgment as a matter of law, contending that §271(f )(1) did not apply to its conduct because the phrase “all or a substantial portion” does not encompass the supply of a single component of a multi- component invention. The District Court granted Life Technologies’ motion. 4 LIFE TECHNOLOGIES CORP. v. PROMEGA CORP. Opinion of the Court The court agreed that there could be no infringement under §271(f )(1) because Promega’s evidence at trial “showed at most that one component of all of the accused products, [the Taq] polymerase, was supplied from the United States.” 2012 WL 12862829, *3 (WD Wis., Sept. 13, 2012) (Crabb, J.). Section 271(f )(1)’s reference to “a substantial portion of the components,” the District Court ruled, does not embrace the supply of a single component. Id., at *5. The Court of Appeals for the Federal Circuit reversed and reinstated the jury’s verdict finding Life Technologies liable for infringement.4 773 F. 3d 1338, 1353 (2014). As relevant here, the court held that “there are circumstances in which a party may be liable under §271(f )(1) for supply- ing or causing to be supplied a single component for com- bination outside the United States.” Ibid. The Federal Circuit concluded that the dictionary definition of “sub- stantial” is “important” or “essential,” which it read to suggest that a single important component can be a “ ‘sub- stantial portion of the components’ ” of a patented inven- tion. Ibid. Relying in part on expert trial testimony that the Taq polymerase is a “ ‘main’ ” and “ ‘major’ ” component of the kits, the court ruled that the single Taq polymerase component was a substantial component as the term is used in §271(f )(1). Id., at 1356. II The question before us is whether the supply of a single component of a multicomponent invention is an infringing act under 35 U.S. C. §271(f )(1). We hold that it is not. —————— 4 Chief Judge Prost dissented from the majority’s conclusion with respect to the “active inducement” element of 35 U.S. C. §271(f)(1). 773 F. 3d, at 1358–1360. Neither that question, nor any of the Federal Circuit’s conclusions regarding Life Technologies’ liability under §271(a) or infringement of four additional Promega patents, see id., at 1341, is before us. See 579 U. S. ___ (2016). Cite as: 580 U. S. ____ (2017) 5 Opinion of the Court A The threshold determination to be made is whether §271(f )(2)’s requirement of “a substantial portion” of the components of a patented invention refers to a quantita- tive or qualitative measurement. Life Technologies and the United States argue that the text of §271(f )(1) estab- lishes a quantitative threshold, and that the threshold must be greater than one. Promega defends the Federal Circuit’s reading of the statute, arguing that a “substan- tial portion” of the components includes a single compo- nent if that component is sufficiently important to the invention. We look first to the text of the statute. Sebelius v. Cloer, 569 U. S. ___, ___ (2013) (slip op., at 6). The Patent Act itself does not define the term “substantial,” and so we turn to its ordinary meaning. Ibid. Here we find little help. All agree the term is ambiguous and, taken in isola- tion, might refer to an important portion or to a large portion. Brief for Petitioners 16; Brief for Respondent 18; Brief for United States as Amicus Curiae 12. “Substan- tial,” as it is commonly understood, may refer either to qualitative importance or to quantitatively large size. See, e.g., Webster’s Third New International Dictionary 2280 (defs. 1c, 2c) (1981) (Webster’s Third) (“important, essen- tial,” or “considerable in amount, value, or worth”); 17 Oxford English Dictionary 67 (defs. 5a, 9) (2d ed. 1989) (OED) (“That is, constitutes, or involves an essential part, point, or feature; essential, material,” or “Of ample or considerable amount, quantity, or dimensions”). The context in which “substantial” appears in the stat- ute, however, points to a quantitative meaning here. Its neighboring terms are the first clue. “[A] word is given more precise content by the neighboring words with which it is associated.” United States v. Williams, 553 U.S. 285, 294 (2008). Both “all” and “portion” convey a quantitative meaning. “All” means the entire quantity, without refer- 6 LIFE TECHNOLOGIES CORP. v. PROMEGA CORP. Opinion of the Court ence to relative importance. See, e.g., Webster’s Third 54 (defs. 1a, 2a, 3) (“that is the whole amount or quantity of,” or “every member or individual component of,” or “the whole number or sum of ”); 1 OED 324 (def. 2) (“The entire number of; the individual components of, without excep- tion”). “Portion” likewise refers to some quantity less than all. Webster’s Third 1768 (defs. 1, 3a) (“an individual’s part or share of something,” or “a part of a whole”); 12 OED 154, 155 (def. 1a, 5a) (“The part (of anything) allotted or belonging to one person,” or “A part of any whole”). Conversely, there is nothing in the neighboring text to ground a qualitative interpretation. Moreover, the phrase “substantial portion” is modified by “of the components of a patented invention.” It is the supply of all or a substantial portion “of the components” of a patented invention that triggers liability for infringe- ment. But if “substantial” has a qualitative meaning, then the more natural way to write the opening clause of the provision would be to not reference “the components” at all. Instead, the opening clause of §271(f )(1) could have triggered liability for the supply of “all or a substantial portion of . . . a patented invention, where [its] compo- nents are uncombined in whole or in part.” A qualitative reading would render the phrase “of the components” unnecessary the first time it is used in §271(f )(1). When- ever possible, however, we should favor an interpretation that gives meaning to each statutory provision. See Hibbs v. Winn, 542 U.S. 88, 101 (2004). Only the quantitative approach does so here. Thus, “substantial,” in the context of §271(f )(1), is most reasonably read to connote a quanti- tative measure. Promega argues that a quantitative approach is too narrow, and invites the Court to instead adopt a “case- specific approach” that would require a factfinder to deci- pher whether the components at issue are a “substantial portion” under either a qualitative or quantitative test. Cite as: 580 U. S. ____ (2017) 7 Opinion of the Court Brief for Respondent 17, 42. We decline to do so. Having determined the phrase “substantial portion” is ambiguous, our task is to resolve that ambiguity, not to compound it by tasking juries across the Nation with interpreting the meaning of the statute on an ad hoc basis. See, e.g., Rob- inson v. Shell Oil Co., 519 U.S. 337, 345–346 (1997). As a more general matter, moreover, we cannot accept Promega’s suggestion that the Court adopt a different analytical framework entirely—one that accounts for both the quantitative and qualitative aspects of the compo- nents. Promega reads §271(f )(1) to mean that the answer to whether a given portion of the components is “substan- tial” depends not only on the number of components in- volved but also on their qualitative importance to the invention overall. At first blush, there is some appeal to the idea that, in close cases, a subjective analysis of the qualitative importance of a component may help deter- mine whether it is a “substantial portion” of the compo- nents of a patent. But, for the reasons discussed above, the statute’s structure provides little support for a qualita- tive interpretation of the term.5 Nor would considering the qualitative importance of a component necessarily help resolve close cases. To the contrary, it might just as easily complicate the factfinder’s review. Surely a great many components of an invention (if not every component) are important. Few inventions, including the one at issue here, would function at all without any one of their components. Indeed, Promega has not identified any component covered by the Tautz —————— 5 The examples Promega provides of other statutes’ use of the terms “substantial” or “significant” are inapposite. See Brief for Respondent 19–20. The text of these statutes, which arise in different statutory schemes with diverse purposes and structures, differs in material ways from the text of §271(f )(1). The Tax Code, for instance, refers to “a substantial portion of a return,” 26 U.S. C. §7701(a)(36)(A), not to “a substantial portion of the entries of a return.” 8 LIFE TECHNOLOGIES CORP. v. PROMEGA CORP. Opinion of the Court patent that would not satisfy Promega’s “importance” litmus test.6 How are courts—or, for that matter, market participants attempting to avoid liability—to determine the relative importance of the components of an invention? Neither Promega nor the Federal Circuit offers an easy way to make this decision. Accordingly, we conclude that a quantitative interpretation hews most closely to the text of the statute and provides an administrable construction. B Having determined that the term “substantial portion” refers to a quantitative measurement, we must next de- cide whether, as a matter of law, a single component can ever constitute a “substantial portion” so as to trigger liability under §271(f )(1). The answer is no. As before, we begin with the text of the statute. Section 271(f )(1) consistently refers to “components” in the plural. The section is targeted toward the supply of all or a sub- stantial portion “of the components,” where “such compo- nents” are uncombined, in a manner that actively induces the combination of “such components” outside the United States. Text specifying a substantial portion of “compo- nents,” plural, indicates that multiple components consti- tute the substantial portion. The structure of §271(f ) reinforces this reading. Section 271(f )(2), which is §271(f )(1)’s companion provision, reads as follows: “Whoever without authority supplies or causes to be supplied in or from the United States any component of a patented invention that is especially made or es- pecially adapted for use in the invention and not a staple article or commodity of commerce suitable for —————— 6 Life Technologies’ expert described the Taq polymerase as a “main” component. App. 160. The expert also described two other components the same way. Ibid. Cite as: 580 U. S. ____ (2017) 9 Opinion of the Court substantial noninfringing use, where such component is uncombined in whole or in part, knowing that such component is so made or adapted and intending that such component will be combined outside of the United States in a manner that would infringe the pa- tent if such combination occurred within the United States, shall be liable as an infringer.” Reading §271(f )(1) to refer to more than one component allows the two provisions to work in tandem. Whereas §271(f )(1) refers to “components,” plural, §271(f )(2) refers to “any component,” singular. And, whereas §271(f )(1) speaks to whether the components supplied by a party constitute a substantial portion of the components, §271(f )(2) speaks to whether a party has supplied “any” noncommodity component “especially made or especially adapted for use in the invention.” We do not disagree with the Federal Circuit’s observa- tion that the two provisions concern different scenarios. See 773 F. 3d, at 1354. As this Court has previously ob- served, §§271(f )(1) and 271(f )(2) “differ, among other things, on the quantity of components that must be ‘sup- plie[d] . . . from the United States’ for liability to attach.” Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 454, n. 16 (2007). But we do not draw the Federal Circuit’s conclu- sion from these different but related provisions. Reading §271(f )(1) to cover any single component would not only leave little room for §271(f )(2), but would also undermine §271(f )(2)’s express reference to a single component “espe- cially made or especially adapted for use in the inven- tion.”7 Our conclusion that §271(f )(1) prohibits the supply of components, plural, gives each subsection its unique —————— 7 ThisCourt’s opinion in Microsoft Corp. v. AT&T Corp., 550 U.S. 437, 447 (2007), is not to the contrary. The holding in that case turned not on the number of components involved, but rather on whether the software at issue was a component at all. 10 LIFE TECHNOLOGIES CORP. v. PROMEGA CORP. Opinion of the Court application.8 See, e.g., Cloer, 569 U. S., at ___ (slip op., at 6). Taken alone, §271(f )(1)’s reference to “components” might plausibly be read to encompass “component” in the singular. See 1 U.S. C. §1 (instructing that “words im- porting the plural include the singular,” “unless the con- text indicates otherwise”). But §271(f )’s text, context, and structure leave us to conclude that when Congress said “components,” plural, it meant plural, and when it said “component,” singular, it meant singular. We do not today define how close to “all” of the compo- nents “a substantial portion” must be. We hold only that one component does not constitute “all or a substantial portion” of a multicomponent invention under §271(f )(1). This is all that is required to resolve the question presented. C The history of §271(f ) bolsters our conclusion. The Court has previously observed that Congress enacted §271(f ) in response to our decision in Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518 (1972). See Microsoft Corp., 550 U.S., at 444. In Deepsouth, the Court deter- mined that, under patent law as it existed at the time, it was “not an infringement to make or use a patented prod- uct outside of the United States.” 406 U.S., at 527. The —————— 8 Promega argues that the important distinction between these provi- sions is that §271(f )(1), unlike §271(f )(2), requires a showing of specific intent for active inducement. Brief for Respondent 34–41. But cf. Global-Tech Appliances, Inc. v. SEB S. A., 563 U.S. 754, 765–766 (2011) (substantially equating the intent requirements for §§271(b) and 271(c), on which Promega asserts §§271(f )(1) and (f )(2) were modeled). But, to repeat, whatever intent subsection (f )(1) may require, it also imposes liability only on a party who supplies a “substantial portion of the components” of the invention. Thus, even assuming that subsection (f )(1)’s “active inducement” requirement is different from subsection (f )(2)’s “knowing” and “intending” element—a question we do not reach today—that difference between the two provisions does not read the “substantial portion” language out of the statute. Cite as: 580 U. S. ____ (2017) 11 Opinion of the Court new §271(f ) “expand[ed] the definition of infringement to include supplying from the United States a patented invention’s components,” as outlined in subsections (f )(1) and (f )(2). Microsoft, 550 U.S., at 444–445. The effect of this provision was to fill a gap in the en- forceability of patent rights by reaching components that are manufactured in the United States but assembled overseas and that were beyond the reach of the statute in its prior formulation. Our ruling today comports with Congress’ intent. A supplier may be liable under §271(f )(1) for supplying from the United States all or a substantial portion of the components (plural) of the in- vention, even when those components are combined abroad. The same is true even for a single component under §271(f )(2) if it is especially made or especially adapted for use in the invention and not a staple article or commodity. We are persuaded, however, that when as in this case a product is made abroad and all components but a single commodity article are supplied from abroad, this activity is outside the scope of the statute. III We hold that the phrase “substantial portion” in 35 U.S. C. §271(f )(1) has a quantitative, not a qualitative, meaning. We hold further that §271(f )(1) does not cover the supply of a single component of a multicomponent invention. The judgment of the Court of Appeals for the Federal Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. THE CHIEF JUSTICE took no part in the decision of this case. Cite as: 580 U. S. ____ (2017) 1 Opinion of ALITO, J. SUPREME COURT OF THE UNITED STATES _________________ No. 14–1538 _________________ LIFE TECHNOLOGIES CORPORATION, ET AL., PETITIONERS v. PROMEGA CORPORATION ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT [February 22, 2017] JUSTICE ALITO, with whom JUSTICE THOMAS joins, concurring in part and concurring in the judgment.

This case concerns the intersection of international supply chains and federal patent law. Section 271(f )(1) of the Patent Act of 1952 prohibits the supply from the United States of “all or a substantial portion” of the compo- nents of a patented invention for combination abroad. 35 U.S. C. )(1). We granted certiorari to determine whether a party that supplies a single component of a multicomponent invention for manufacture abroad can be held liable for infringement under )(1). 579 U. S. (2016). We hold that a single component does not constitute a substantial portion of the components that can give rise to liability under )(1). Because only a single component of the patented invention at issue here was supplied from the United States, we reverse and remand. I A We begin with an overview of the patent in dispute. Although the science behind the patent is complex, a basic understanding suffices to resolve the question presented 2 LIFE TECHNOLOGIES CORP. v. PROMEGA CORP. Opinion of the Court by this case. The Tautz patent, U. S. Reissue Patent No. RE 37,984, claims a toolkit for genetic testing.1 The kit is used to take small samples of genetic material—in the form of nucleo- tide sequences that make up the molecule deoxyribonu- cleic acid (commonly referred to as “DNA”)—and then syn- thesize multiple copies of a particular nucleotide sequence. This process of copying, known as amplification, generates DNA profiles that can be used by law enforcement agen- cies for forensic identification and by clinical and research institutions around the world. For purposes of this litiga- tion, the parties agree that the kit covered by the Tautz patent contains five components: (1) a mixture of primers that mark the part of the DNA strand to be copied; (2) nucleotides for forming replicated strands of DNA; (3) an enzyme known as Taq polymerase; (4) a buffer solution for the amplification; and (5) control DNA.2 Respondent Promega Corporation was the exclusive licensee of the Tautz patent. Petitioner Life Technologies Corporation manufactured genetic testing kits.3 During the timeframe relevant here, Promega sublicensed the Tautz patent to Life Technologies for the manufacture and sale of the kits for use in certain licensed law enforcement fields worldwide. Life Technologies manufactured all but one component of the kits in the United Kingdom. It manufactured that component—the Taq polymerase—in —————— 1 TheTautz patent expired in 2015. The litigation thus concerns past acts of infringement only. 2 Because the parties here agree that the patented invention is made up of only these five components, we do not consider how to identify the “components” of a patent or whether and how that inquiry relates to the elements of a patent claim. 3 Applied Biosystems, LLC, and Invitrogen IP Holdings, Inc., are also petitioners in this proceeding and are wholly owned subsidiaries of Life Technologies Corporation. The agreement at issue here was originally between Promega and Applied Biosystems. Cite as: 580 U. S. (2017) 3 Opinion of the Court the United States. Life Technologies shipped the Taq polymerase to its United Kingdom facility, where it was combined with the other four components of the kit. Four years into the agreement, Promega sued Life Technologies on the grounds that Life Technologies had infringed the patent by selling the kits outside the li- censed fields of use to clinical and research markets. As relevant here, Promega alleged that Life Technologies’ supply of the Taq polymerase from the United States to its United Kingdom manufacturing facilities triggered liabil- ity under )(1). B At trial, the parties disputed the scope of )(1)’s prohibition against supplying all or a substantial portion of the components of a patented invention from the United States for combination abroad. Section 271(f )(1)’s full text reads: “Whoever without authority supplies or causes to be supplied in or from the United States all or a substan- tial portion of the components of a patented invention, where such components are uncombined in whole or in part, in such manner as to actively induce the com- bination of such components outside of the United States in a manner that would infringe the patent if such combination occurred within the United States, shall be liable as an infringer.” The jury returned a verdict for Promega, finding that Life Technologies had willfully infringed the patent. Life Technologies then moved for judgment as a matter of law, contending that )(1) did not apply to its conduct because the phrase “all or a substantial portion” does not encompass the supply of a single component of a multi- component invention. The District Court granted Life Technologies’ motion. 4 LIFE TECHNOLOGIES CORP. v. PROMEGA CORP. Opinion of the Court The court agreed that there could be no infringement under )(1) because Promega’s evidence at trial “showed at most that one component of all of the accused products, [the Taq] polymerase, was supplied from the United States.” (WD Wis., Sept. 13, 2012) (Crabb, J.). Section 271(f )(1)’s reference to “a substantial portion of the components,” the District Court ruled, does not embrace the supply of a single component. The Court of Appeals for the Federal Circuit reversed and reinstated the jury’s verdict finding Life Technologies liable for infringement.4 As relevant here, the court held that “there are circumstances in which a party may be liable under )(1) for supply- ing or causing to be supplied a single component for com- bination outside the United States.” The Federal Circuit concluded that the dictionary definition of “sub- stantial” is “important” or “essential,” which it read to suggest that a single important component can be a “ ‘sub- stantial portion of the components’ ” of a patented inven- tion. Relying in part on expert trial testimony that the Taq polymerase is a “ ‘main’ ” and “ ‘major’ ” component of the kits, the court ruled that the single Taq polymerase component was a substantial component as the term is used in )(1). II The question before us is whether the supply of a single component of a multicomponent invention is an infringing act under 35 U.S. C. )(1). We hold that it is not. —————— 4 Chief Judge Prost dissented from the majority’s conclusion with respect to the “active inducement” element of 35 U.S. C. )(1). 773 F. 3d, at 1358–1360. Neither that question, nor any of the Federal Circuit’s conclusions regarding Life Technologies’ liability under or infringement of four additional Promega patents, see at 1341, is before us. See 579 U. S. (2016). Cite as: 580 U. S. (2017) 5 Opinion of the Court A The threshold determination to be made is whether )(2)’s requirement of “a substantial portion” of the components of a patented invention refers to a quantita- tive or qualitative measurement. Life Technologies and the United States argue that the text of )(1) estab- lishes a quantitative threshold, and that the threshold must be greater than one. Promega defends the Federal Circuit’s reading of the statute, arguing that a “substan- tial portion” of the components includes a single compo- nent if that component is sufficiently important to the invention. We look first to the text of the statute. Sebelius v. Cloer, 569 U. S. (2013) (slip op., at 6). The Patent Act itself does not define the term “substantial,” and so we turn to its ordinary meaning. Here we find little help. All agree the term is ambiguous and, taken in isola- tion, might refer to an important portion or to a large portion. Brief for Petitioners 16; Brief for Respondent 18; Brief for United States as Amicus Curiae 12. “Substan- tial,” as it is commonly understood, may refer either to qualitative importance or to quantitatively large size. See, e.g., Webster’s Third New International Dictionary 2280 (defs. 1c, 2c) (1981) (Webster’s Third) (“important, essen- tial,” or “considerable in amount, value, or worth”); 17 Oxford English Dictionary 67 (defs. 5a, 9) (2d ed. 1989) (OED) (“That is, constitutes, or involves an essential part, point, or feature; essential, material,” or “Of ample or considerable amount, quantity, or dimensions”). The context in which “substantial” appears in the stat- ute, however, points to a quantitative meaning here. Its neighboring terms are the first clue. “[A] word is given more precise content by the neighboring words with which it is associated.” United 294 (2008). Both “all” and “portion” convey a quantitative meaning. “All” means the entire quantity, without refer- 6 LIFE TECHNOLOGIES CORP. v. PROMEGA CORP. Opinion of the Court ence to relative importance. See, e.g., Webster’s Third 54 (defs. 1a, 2a, 3) (“that is the whole amount or quantity of,” or “every member or individual component of,” or “the whole number or sum of ”); 1 OED 324 (def. 2) (“The entire number of; the individual components of, without excep- tion”). “Portion” likewise refers to some quantity less than all. Webster’s Third 1768 (defs. 1, 3a) (“an individual’s part or share of something,” or “a part of a whole”); 12 OED 154, 155 (def. 1a, 5a) (“The part (of anything) allotted or belonging to one person,” or “A part of any whole”). Conversely, there is nothing in the neighboring text to ground a qualitative interpretation. Moreover, the phrase “substantial portion” is modified by “of the components of a patented invention.” It is the supply of all or a substantial portion “of the components” of a patented invention that triggers liability for infringe- ment. But if “substantial” has a qualitative meaning, then the more natural way to write the opening clause of the provision would be to not reference “the components” at all. Instead, the opening clause of )(1) could have triggered liability for the supply of “all or a substantial portion of a patented invention, where [its] compo- nents are uncombined in whole or in part.” A qualitative reading would render the phrase “of the components” unnecessary the first time it is used in )(1). When- ever possible, however, we should favor an interpretation that gives meaning to each statutory provision. See Hibbs v. Winn, Only the quantitative approach does so here. Thus, “substantial,” in the context of )(1), is most reasonably read to connote a quanti- tative measure. Promega argues that a quantitative approach is too narrow, and invites the Court to instead adopt a “case- specific approach” that would require a factfinder to deci- pher whether the components at issue are a “substantial portion” under either a qualitative or quantitative test. Cite as: 580 U. S. (2017) 7 Opinion of the Court Brief for Respondent 17, 42. We decline to do so. Having determined the phrase “substantial portion” is ambiguous, our task is to resolve that ambiguity, not to compound it by tasking juries across the Nation with interpreting the meaning of the statute on an ad hoc basis. See, e.g., Rob- As a more general matter, moreover, we cannot accept Promega’s suggestion that the Court adopt a different analytical framework entirely—one that accounts for both the quantitative and qualitative aspects of the compo- nents. Promega reads )(1) to mean that the answer to whether a given portion of the components is “substan- tial” depends not only on the number of components in- volved but also on their qualitative importance to the invention overall. At first blush, there is some appeal to the idea that, in close cases, a subjective analysis of the qualitative importance of a component may help deter- mine whether it is a “substantial portion” of the compo- nents of a patent. But, for the reasons discussed above, the statute’s structure provides little support for a qualita- tive interpretation of the term.5 Nor would considering the qualitative importance of a component necessarily help resolve close cases. To the contrary, it might just as easily complicate the factfinder’s review. Surely a great many components of an invention (if not every component) are important. Few inventions, including the one at issue here, would function at all without any one of their components. Indeed, Promega has not identified any component covered by the Tautz —————— 5 The examples Promega provides of other statutes’ use of the terms “substantial” or “significant” are inapposite. See Brief for Respondent 19–20. The text of these statutes, which arise in different statutory schemes with diverse purposes and structures, differs in material ways from the text of )(1). The Tax Code, for instance, refers to “a substantial portion of a return,” 26 U.S. C. not to “a substantial portion of the entries of a return.” 8 LIFE TECHNOLOGIES CORP. v. PROMEGA CORP. Opinion of the Court patent that would not satisfy Promega’s “importance” litmus test.6 How are courts—or, for that matter, market participants attempting to avoid liability—to determine the relative importance of the components of an invention? Neither Promega nor the Federal Circuit offers an easy way to make this decision. Accordingly, we conclude that a quantitative interpretation hews most closely to the text of the statute and provides an administrable construction. B Having determined that the term “substantial portion” refers to a quantitative measurement, we must next de- cide whether, as a matter of law, a single component can ever constitute a “substantial portion” so as to trigger liability under )(1). The answer is no. As before, we begin with the text of the statute. Section 271(f )(1) consistently refers to “components” in the plural. The section is targeted toward the supply of all or a sub- stantial portion “of the components,” where “such compo- nents” are uncombined, in a manner that actively induces the combination of “such components” outside the United States. Text specifying a substantial portion of “compo- nents,” plural, indicates that multiple components consti- tute the substantial portion. The structure of ) reinforces this reading. Section 271(f )(2), which is )(1)’s companion provision, reads as follows: “Whoever without authority supplies or causes to be supplied in or from the United States any component of a patented invention that is especially made or es- pecially adapted for use in the invention and not a staple article or commodity of commerce suitable for —————— 6 Life Technologies’ expert described the Taq polymerase as a “main” component. App. 160. The expert also described two other components the same way. Cite as: 580 U. S. (2017) 9 Opinion of the Court substantial noninfringing use, where such component is uncombined in whole or in part, knowing that such component is so made or adapted and intending that such component will be combined outside of the United States in a manner that would infringe the pa- tent if such combination occurred within the United States, shall be liable as an infringer.” Reading )(1) to refer to more than one component allows the two provisions to work in tandem. Whereas )(1) refers to “components,” plural, )(2) refers to “any component,” singular. And, whereas )(1) speaks to whether the components supplied by a party constitute a substantial portion of the components, )(2) speaks to whether a party has supplied “any” noncommodity component “especially made or especially adapted for use in the invention.” We do not disagree with the Federal Circuit’s observa- tion that the two provisions concern different scenarios. See As this Court has previously ob- served, § )(1) and 271(f )(2) “differ, among other things, on the quantity of components that must be ‘sup- plie[d] from the United States’ for liability to attach.” (2007). But we do not draw the Federal Circuit’s conclu- sion from these different but related provisions. Reading )(1) to cover any single component would not only leave little room for )(2), but would also undermine )(2)’s express reference to a single component “espe- cially made or especially adapted for use in the inven- tion.”7 Our conclusion that )(1) prohibits the supply of components, plural, gives each subsection its unique —————— 7 ThisCourt’s opinion in 550 U.S. 437, 447 (2007), is not to the contrary. The holding in that case turned not on the number of components involved, but rather on whether the software at issue was a component at all. 10 LIFE TECHNOLOGIES CORP. v. PROMEGA CORP. Opinion of the Court application.8 See, e.g., Cloer, 569 U. S., at (slip op., at 6). Taken alone, )(1)’s reference to “components” might plausibly be read to encompass “component” in the singular. See 1 U.S. C. (instructing that “words im- porting the plural include the singular,” “unless the con- text indicates otherwise”). But )’s text, context, and structure leave us to conclude that when Congress said “components,” plural, it meant plural, and when it said “component,” singular, it meant singular. We do not today define how close to “all” of the compo- nents “a substantial portion” must be. We hold only that one component does not constitute “all or a substantial portion” of a multicomponent invention under )(1). This is all that is required to resolve the question presented. C The history of ) bolsters our conclusion. The Court has previously observed that Congress enacted ) in response to our decision in Deepsouth Packing See In Deepsouth, the Court deter- mined that, under patent law as it existed at the time, it was “not an infringement to make or use a patented prod- uct outside of the United States.” The —————— 8 Promega argues that the important distinction between these provi- sions is that )(1), unlike )(2), requires a showing of specific intent for active inducement. Brief for Respondent 34–41. But cf. Global-Tech Appliances, 765–766 (2011) (substantially equating the intent requirements for and 271(c), on which Promega asserts § )(1) and (f )(2) were modeled). But, to repeat, whatever intent subsection (f )(1) may require, it also imposes liability only on a party who supplies a “substantial portion of the components” of the invention. Thus, even assuming that subsection (f )(1)’s “active inducement” requirement is different from subsection (f )(2)’s “knowing” and “intending” element—a question we do not reach today—that difference between the two provisions does not read the “substantial portion” language out of the statute. Cite as: 580 U. S. (2017) 11 Opinion of the Court new ) “expand[ed] the definition of infringement to include supplying from the United States a patented invention’s components,” as outlined in subsections (f )(1) and (f )(2). –445. The effect of this provision was to fill a gap in the en- forceability of patent rights by reaching components that are manufactured in the United States but assembled overseas and that were beyond the reach of the statute in its prior formulation. Our ruling today comports with Congress’ intent. A supplier may be liable under )(1) for supplying from the United States all or a substantial portion of the components (plural) of the in- vention, even when those components are combined abroad. The same is true even for a single component under )(2) if it is especially made or especially adapted for use in the invention and not a staple article or commodity. We are persuaded, however, that when as in this case a product is made abroad and all components but a single commodity article are supplied from abroad, this activity is outside the scope of the statute. III We hold that the phrase “substantial portion” in 35 U.S. C. )(1) has a quantitative, not a qualitative, meaning. We hold further that )(1) does not cover the supply of a single component of a multicomponent invention. The judgment of the Court of Appeals for the Federal Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. THE CHIEF JUSTICE took no part in the decision of this case. Cite as: 580 U. S. (2017) 1 Opinion of ALITO, J. SUPREME COURT OF THE UNITED STATES No. 14–1538 LIFE TECHNOLOGIES CORPORATION, ET AL., PETITIONERS v. PROMEGA CORPORATION ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT [February 22, 2017] JUSTICE ALITO, with whom JUSTICE THOMAS joins, concurring in part and concurring in the judgment.

Justice Alito

concurring

Life Technologies Corp. v. Promega Corp.

2017-02-22

https://www.courtlistener.com/opinion/4374575/life-technologies-corp-v-promega-corp/

https://www.courtlistener.com/api/rest/v3/clusters/4374575/

2016-031

I join all but Part II–C of the Court’s opinion. It is clear from the text of 35 U.S. C. §271(f) that Congress intended not only to fill the gap created by Deepsouth Packing Co. v. Laitram Corp., 406 U.S. 518 (1972)—where all of the components of the invention were manufactured in the United States, id., at 524—but to go at least a little fur- ther. How much further is the question in this case, and the genesis of §271(f) sheds no light on that question. I note, in addition, that while the Court holds that a single component cannot constitute a substantial portion of an invention’s components for §271(f)(1) purposes, I do not read the opinion to suggest that any number greater than one is sufficient. In other words, today’s opinion establishes that more than one component is necessary, but does not address how much more

I join all but Part II–C of the Court’s opinion. It is clear from the text of 35 U.S. C. that Congress intended not only to fill the gap created by Deepsouth Packing Co. v. Laitram Corp., —where all of the components of the invention were manufactured in the United States, at 524—but to go at least a little fur- ther. How much further is the question in this case, and the genesis of sheds no light on that question. I note, in addition, that while the Court holds that a single component cannot constitute a substantial portion of an invention’s components for (1) purposes, I do not read the opinion to suggest that any number greater than one is sufficient. In other words, today’s opinion establishes that more than one component is necessary, but does not address how much more

Justice Scalia

majority

Nevada v. Hicks

2001-06-25

https://www.courtlistener.com/opinion/118454/nevada-v-hicks/

https://www.courtlistener.com/api/rest/v3/clusters/118454/

2000-080

This case presents the question whether a tribal court may assert jurisdiction over civil claims against state officials who entered tribal land to execute a search warrant against a tribe member suspected of having violated state law outside the reservation. I Respondent Hicks[1] is one of about 900 members of the Fallon Paiute-Shoshone Tribes of western Nevada. He resides *356 on the Tribes' reservation of approximately 8,000 acres, established by federal statute in 1908, ch. 53, 35 Stat. 85. In 1990 Hicks came under suspicion of having killed, off the reservation, a California bighorn sheep, a gross misdemeanor under Nevada law, see Nev. Rev. Stat. § 501.376 (1999). A state game warden obtained from state court a search warrant "SUBJECT TO OBTAINING APPROVAL FROM THE FALLON TRIBAL COURT IN AND FOR THE FALLON PAIUTE-SHOSHONE TRIBES." According to the issuing judge, this tribal-court authorization was necessary because "[t]his Court has no jurisdiction on the Fallon Paiute-Shoshone Indian Reservation." App. G to Pet. for Cert. 1. A search warrant was obtained from the tribal court, and the warden, accompanied by a tribal police officer, searched respondent's yard, uncovering only the head of a Rocky Mountain bighorn, a different (and unprotected) species of sheep. Approximately one year later, a tribal police officer reported to the warden that he had observed two mounted bighorn sheep heads in respondent's home. The warden again obtained a search warrant from state court; though this warrant did not explicitly require permission from the Tribes, see App. F to Pet. for Cert. 2, a tribal-court warrant was nonetheless secured, and respondent's home was again (unsuccessfully) searched by three wardens and additional tribal officers. Respondent, claiming that his sheep heads had been damaged, and that the second search exceeded the bounds of the warrant, brought suit against the Tribal Judge, the tribal officers, the state wardens in their individual and official capacities, and the State of Nevada in the Tribal Court in and for the Fallon Paiute-Shoshone Tribes. (His claims against all defendants except the state wardens and the State of Nevada were dismissed by directed verdict and are not at issue here.) Respondent's causes of action included trespass to land and chattels, abuse of process, and violation of civil *357 rights—specifically, denial of equal protection, denial of due process, and unreasonable search and seizure, each remediable under Rev. Stat. § 1979, 42 U.S. C. § 1983. See App. 8-21, 25-29. Respondent later voluntarily dismissed his case against the State and against the state officials in their official capacities, leaving only his suit against those officials in their individual capacities. See id., at 32-35. The Tribal Court held that it had jurisdiction over the claims, a holding affirmed by the Tribal Appeals Court. The state officials and Nevada then filed an action in Federal District Court seeking a declaratory judgment that the Tribal Court lacked jurisdiction. The District Court granted summary judgment to respondent on the issue of jurisdiction, and also held that the state officials would have to exhaust any claims of qualified immunity in the tribal court. The Ninth Circuit affirmed, concluding that the fact that respondent's home is located on tribe-owned land within the reservation is sufficient to support tribal jurisdiction over civil claims against nonmembers arising from their activities on that land. 196 F.3d 1020 (1999). We granted certiorari, 531 U.S. 923 (2000). II In this case, which involves claims brought under both tribal and federal law, it is necessary to determine, as to the former, whether the Tribal Court in and for the Fallon Paiute-Shoshone Tribes has jurisdiction to adjudicate the alleged tortious conduct of state wardens executing a search warrant for evidence of an off-reservation crime; and, as to the latter, whether the Tribal Court has jurisdiction over claims brought under 42 U.S. C. § 1983. We address the former question first. A The principle of Indian law central to this aspect of the case is our holding in Strate v. A-1 Contractors, 520 U.S. 438, 453 (1997): "As to nonmembers . . . a tribe's adjudicative *358 jurisdiction does not exceed its legislative jurisdiction . . . ." That formulation leaves open the question whether a tribe's adjudicative jurisdiction over nonmember defendants equals its legislative jurisdiction.[2] We will not have to answer that open question if we determine that the Tribes in any event lack legislative jurisdiction in this case. We first inquire, therefore, whether the Fallon Paiute-Shoshone Tribes— either as an exercise of their inherent sovereignty, or under grant of federal authority—can regulate state wardens executing a search warrant for evidence of an off-reservation crime. Indian tribes' regulatory authority over nonmembers is governed by the principles set forth in Montana v. United States, 450 U.S. 544 (1981), which we have called the "pathmarking case" on the subject, Strate, supra, at 445. In deciding whether the Crow Tribe could regulate hunting and fishing by nonmembers on land held in fee simple by nonmembers, Montana observed that, under our decision in Oliphant v. Suquamish Tribe, 435 U.S. 191 (1978), tribes lack criminal jurisdiction over nonmembers. Although, it continued, "Oliphant only determined inherent tribal authority in criminal matters, the principles on which it relied support the general proposition that the inherent sovereign *359 powers of an Indian tribe do not extend to the activities of nonmembers of the tribe." 450 U.S., at 565 (footnote omitted). Where nonmembers are concerned, the "exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation." Id., at 564 (emphasis added).[3] Both Montana and Strate rejected tribal authority to regulate nonmembers' activities on land over which the tribe could not "assert a landowner's right to occupy and exclude," Strate, supra, at 456; Montana, supra, at 557, 564. Respondents and the United States argue that since Hicks's home and yard are on tribe-owned land within the reservation, the Tribe may make its exercise of regulatory authority over nonmembers a condition of nonmembers' entry. Not necessarily. While it is certainly true that the non-Indian ownership status of the land was central to the analysis in both Montana and Strate, the reason that was so was not that Indian ownership suspends the "general proposition" derived from Oliphant that "the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe" except to the extent "necessary to protect tribal self-government or to control internal relations." 450 U.S., at 564-565. Oliphant itself drew no distinctions based on the status of land. And Montana, after announcing the general rule of no jurisdiction over nonmembers, *360 cautioned that "[t]o be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands," 450 U.S., at 565—clearly implying that the general rule of Montana applies to both Indian and non-Indian land. The ownership status of land, in other words, is only one factor to consider in determining whether regulation of the activities of nonmembers is "necessary to protect tribal self-government or to control internal relations." It may sometimes be a dispositive factor. Hitherto, the absence of tribal ownership has been virtually conclusive of the absence of tribal civil jurisdiction; with one minor exception, we have never upheld under Montana the extension of tribal civil authority over nonmembers on non-Indian land. Compare, e. g., Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 137, 142 (1982) (tribe has taxing authority over tribal lands leased by nonmembers), with Atkinson Trading Co. v. Shirley, 532 U.S. 645, 659 (2001) (tribe has no taxing authority over nonmembers' activities on land held by nonmembers in fee); but see Brendale v. Confederated Tribes and Bands of Yakima Nation, 492 U.S. 408, 443-444, 458-459 (1989) (opinions of Stevens, J., and Blackmun, J.) (tribe can impose zoning regulation on that 3.1% of land within reservation area closed to public entry that was not owned by the tribe). But the existence of tribal ownership is not alone enough to support regulatory jurisdiction over nonmembers. We proceed to consider, successively, the following questions: whether regulatory jurisdiction over state officers in the present context is "necessary to protect tribal selfgovernment or to control internal relations," and, if not, whether such regulatory jurisdiction has been congressionally conferred. B In Strate, we explained that what is necessary to protect tribal self-government and control internal relations can be understood by looking at the examples of tribal power to *361 which Montana referred: tribes have authority "[to punish tribal offenders,] to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members," 520 U.S., at 459 (brackets in original), quoting Montana, supra, at 564. These examples show, we said, that Indians have "`the right . . . to make their own laws and be ruled by them,' " 520 U.S., at 459, quoting Williams v. Lee, 358 U.S. 217, 220 (1959). See also Fisher v. District Court of Sixteenth Judicial Dist. of Mont., 424 U.S. 382, 386 (1976) (per curiam) ("In litigation between Indians and non-Indians arising out of conduct on an Indian reservation, resolution of conflicts between the jurisdiction of state and tribal courts has depended, absent a governing Act of Congress, on whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them" (internal quotation marks and citation omitted)). Tribal assertion of regulatory authority over nonmembers must be connected to that right of the Indians to make their own laws and be governed by them. See Merrion, supra, at 137, 142 ("The power to tax is an essential attribute of Indian sovereignty because it is a necessary instrument of self-government," at least as to "tribal lands" on which the tribe "has . . . authority over a nonmember"). Our cases make clear that the Indians' right to make their own laws and be governed by them does not exclude all state regulatory authority on the reservation. State sovereignty does not end at a reservation's border. Though tribes are often referred to as "sovereign" entities, it was "long ago" that "the Court departed from Chief Justice Marshall's view that `the laws of [a State] can have no force' within reservation boundaries. Worcester v. Georgia, 6 Pet. 515, 561 (1832)," White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 141 (1980).[4] "Ordinarily," it is now clear, "an Indian *362 reservation is considered part of the territory of the State." U. S. Dept. of Interior, Federal Indian Law 510, and n. 1 (1958), citing Utah & Northern R. Co. v. Fisher, 116 U.S. 28 (1885); see also Organized Village of Kake v. Egan, 369 U.S. 60, 72 (1962). That is not to say that States may exert the same degree of regulatory authority within a reservation as they do without. To the contrary, the principle that Indians have the right to make their own laws and be governed by them requires "an accommodation between the interests of the Tribes and the Federal Government, on the one hand, and those of the State, on the other." Washington v. Confederated Tribes of Colville Reservation, 447 U.S. 134, 156 (1980); see also id., at 181 (opinion of Rehnquist, J.). "When onreservation conduct involving only Indians is at issue, state law is generally inapplicable, for the State's regulatory interest is likely to be minimal and the federal interest in encouraging tribal self-government is at its strongest." Bracker, supra, at 144. When, however, state interests outside the reservation are implicated, States may regulate the activities even of tribe members on tribal land, as exemplified by our decision in Confederated Tribes. In that case, Indians were selling cigarettes on their reservation to nonmembers from off reservation, without collecting the state cigarette tax. We held that the State could require the Tribes to collect the tax from nonmembers, and could "impose at least `minimal' burdens on the Indian retailer to aid in enforcing and collecting the tax," 447 U.S., at 151. It is also well established in our precedent that States have criminal jurisdiction over reservation Indians for crimes committed (as was the alleged poaching in this case) off the reservation. See Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148— 149 (1973). *363 While it is not entirely clear from our precedent whether the last mentioned authority entails the corollary right to enter a reservation (including Indian-fee lands) for enforcement purposes, several of our opinions point in that direction. In Confederated Tribes, we explicitly reserved the question whether state officials could seize cigarettes held for sale to nonmembers in order to recover the taxes due. See 447 U.S., at 162. In Utah & Northern R. Co., however, we observed that "[i]t has . . . been held that process of [state] courts may run into an Indian reservation of this kind, where the subject-matter or controversy is otherwise within their cognizance," 116 U.S., at 31.[5] Shortly thereafter, we considered, in United States v. Kagama, 118 U.S. 375 (1886), whether Congress could enact a law giving federal courts jurisdiction over various common-law, violent crimes committed by Indians on a reservation within a State. We expressed skepticism that the Indian Commerce Clause could justify this assertion of authority in derogation of state jurisdiction, but ultimately accepted the argument that the law "does not interfere with the process of the State courts within the reservation, nor with the operation of State laws upon white people found there. Its effect is confined to the acts of an Indian of some tribe, of a criminal character, committed within the limits of the reservation. "It seems to us that this is within the competency of Congress." Id., at 383. The Court's references to "process" in Utah & Northern R. Co. and Kagama, and the Court's concern in Kagama over possible federal encroachment on state prerogatives, suggest *364 state authority to issue search warrants in cases such as the one before us. ("Process" is defined as "any means used by a court to acquire or exercise its jurisdiction over a person or over specific property," Black's Law Dictionary 1084 (5th ed. 1979), and is equated in criminal cases with a warrant, id., at 1085.) It is noteworthy that Kagama recognized the right of state laws to "operat[e] . . . upon [nonIndians] found" within a reservation, but did not similarly limit to non-Indians or the property of non-Indians the scope of the process of state courts. This makes perfect sense, since, as we explained in the context of federal enclaves, the reservation of state authority to serve process is necessary to "prevent [such areas] from becoming an asylum for fugitives from justice." Fort Leavenworth R. Co. v. Lowe, 114 U.S. 525, 533 (1885).[6] We conclude today, in accordance with these prior statements, that tribal authority to regulate state officers in executing process related to the violation, off reservation, of state laws is not essential to tribal self-government or internal relations—to "the right to make laws and be ruled by them." The State's interest in execution of process is considerable, and even when it relates to Indian-fee lands it no more impairs the tribe's self-government than federal enforcement of federal law impairs state government. Respondents argue that, even conceding the State's general interest in enforcing its off-reservation poaching law on the reservation, Nevada's interest in this suit is minimal, because it is a suit against state officials in their individual *365 capacities. We think, however, that the distinction between individual and official capacity suits is irrelevant. To paraphrase our opinion in Tennessee v. Davis, 100 U.S. 257, 263 (1880), which upheld a federal statute permitting federal officers to remove to federal court state criminal proceedings brought against them for their official actions, a State "can act only through its officers and agents," and if a tribe can "affix penalties to acts done under the immediate direction of the [state] government, and in obedience to its laws," "the operations of the [state] government may at any time be arrested at the will of the [tribe]." Cf. Anderson v. Creighton, 483 U.S. 635, 638 (1987) ("[P]ermitting damages suits against government officials can entail substantial social costs, including the risk that fear of personal monetary liability and harassing litigation will unduly inhibit officials in the discharge of their duties"). C The States' inherent jurisdiction on reservations can of course be stripped by Congress, see Draper v. United States, 164 U.S. 240, 242-243 (1896). But with regard to the jurisdiction at issue here that has not occurred. The Government's assertion that "[a]s a general matter, although state officials have jurisdiction to investigate and prosecute crimes on a reservation that exclusively involve non-Indians, . . . they do not have jurisdiction with respect to crimes involving Indian perpetrators or Indian victims," Brief for United States as Amicus Curiae 12-13, n. 7, is misleading. The statutes upon which it relies, see id., at 18-19, show that the last half of the statement, like the first, is limited to "crimes on a reservation. " Sections 1152 and 1153 of Title 18, which give United States and tribal criminal law generally exclusive application, apply only to crimes committed in Indian country; Public Law 280, codified at 18 U.S. C. § 1162, which permits some state jurisdiction as an exception to this rule, is similarly limited. And 25 U.S. C. *366 § 2804, which permits federal-state agreements enabling state law enforcement agents to act on reservations, applies only to deputizing them for the enforcement of federal or tribal criminal law. Nothing in the federal statutory scheme prescribes, or even remotely suggests, that state officers cannot enter a reservation (including Indian-fee land) to investigate or prosecute violations of state law occurring off the reservation. To the contrary, 25 U.S. C. § 2806 affirms that "the provisions of this chapter alter neither . . . the law enforcement, investigative, or judicial authority of any . . . State, or political subdivision or agency thereof . . . ." III We turn next to the contention of respondent and the Government that the tribal court, as a court of general jurisdiction, has authority to entertain federal claims under § 1983.[7] It is certainly true that state courts of "general jurisdiction" can adjudicate cases invoking federal statutes, such as § 1983, absent congressional specification to the contrary. "Under [our] system of dual sovereignty, we have consistently held that state courts have inherent authority, and are thus presumptively competent, to adjudicate claims arising under the laws of the United States," Tafflin v. Levitt, 493 U.S. 455, 458 (1990). That this would be the case was assumed by the Framers, see The Federalist No. 82, pp. 492-493 (C. Rossiter ed. 1961). Indeed, that state courts could enforce federal law is presumed by Article III of the *367 Constitution, which leaves to Congress the decision whether to create lower federal courts at all. This historical and constitutional assumption of concurrent state-court jurisdiction over federal-law cases is completely missing with respect to tribal courts. Respondents' contention that tribal courts are courts of "general jurisdiction" is also quite wrong. A state court's jurisdiction is general, in that it "lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe." Id., at 493. Tribal courts, it should be clear, cannot be courts of general jurisdiction in this sense, for a tribe's inherent adjudicative jurisdiction over nonmembers is at most only as broad as its legislative jurisdiction. See supra, at 357-359.[8] It is true that some statutes proclaim tribal-court jurisdiction over certain questions of federal law. See, e. g., 25 U.S. C. § 1911(a) (authority to adjudicate child custody disputes under the Indian Child Welfare Act of 1978); 12 U.S. C. § 1715z—13(g)(5) (jurisdiction over mortgage foreclosure actions brought by the Secretary of Housing and Urban Development against reservation *368 homeowners). But no provision in federal law provides for tribal-court jurisdiction over § 1983 actions. Furthermore, tribal-court jurisdiction would create serious anomalies, as the Government recognizes, because the general federal-question removal statute refers only to removal from state court, see 28 U.S. C. § 1441. Were § 1983 claims cognizable in tribal court, defendants would inexplicably lack the right available to state-court § 1983 defendants to seek a federal forum. The Government thinks the omission of reference to tribal courts in § 1441 unproblematic. Since, it argues, "[i]t is doubtful . . . that Congress intended to deny tribal court defendants the right given state court defendants to elect a federal forum for the adjudication of causes of action under federal law," we should feel free to create that right by permitting the tribalcourt defendant to obtain a federal-court injunction against the action, effectively forcing it to be refiled in federal court. Brief for United States as Amicus Curiae 25-26. The sole support for devising this extraordinary remedy is El Paso Natural Gas Co. v. Neztsosie, 526 U.S. 473 (1999), where we approved a similar procedure with regard to claims under the Price-Anderson Act brought in tribal court. In Neztsosie, however, the claims were not initially federal claims, but Navajo tort claims that the Price-Anderson Act provided "shall be deemed to be . . . action[s] arising under" 42 U.S. C. § 2210; there was little doubt that the tribal court had jurisdiction over such tort claims, see 526 U.S., at 482, n. 4. And for the propriety of the injunction in Neztsosie, we relied not on § 1441, but on the removal provision of the Price-Anderson Act, 42 U.S. C. § 2210(n)(2). Although, like § 1441, that provision referred only to removal from state courts, in light of the Act's detailed and distinctive provisions for the handling of "nuclear incident" cases in federal court, see 526 U.S., at 486, we thought it clear Congress envisioned the defendant's ability to get into federal court in all instances. *369 Not only are there missing here any distinctive federal-court procedures, but in order even to confront the question whether an unspecified removal power exists, we must first attribute to tribal courts jurisdiction that is not apparent. Surely the simpler way to avoid the removal problem is to conclude (as other indications suggest anyway) that tribal courts cannot entertain § 1983 suits. IV The last question before us is whether petitioners were required to exhaust their jurisdictional claims in Tribal Court before bringing them in Federal District Court. See National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 856-857 (1985). In National Farmers Union we recognized exceptions to the exhaustion requirement, where "an assertion of tribal jurisdiction is motivated by a desire to harass or is conducted in bad faith, . . . or where the action is patently violative of express jurisdictional prohibitions, or where exhaustion would be futile because of the lack of an adequate opportunity to challenge the court's jurisdiction," id., at 856, n. 21 (internal quotation marks omitted). None of these exceptions seems applicable to this case, but we added a broader exception in Strate: "[w]hen . . . it is plain that no federal grant provides for tribal governance of nonmembers' conduct on land covered by Montana `s main rule," so the exhaustion requirement "would serve no purpose other than delay." 520 U.S., at 459-460, and n. 14. Though this exception too is technically inapplicable, the reasoning behind it is not. Since it is clear, as we have discussed, that tribal courts lack jurisdiction over state officials for causes of action relating to their performance of official duties, adherence to the tribal exhaustion requirement in such cases "would serve no purpose other than delay," and is therefore unnecessary. *370 V Finally, a few words in response to the concurrence of Justice O'Connor, which is in large part a dissent from the views expressed in this opinion.[9] The principal point of the concurrence is that our reasoning "gives only passing consideration to the fact that the state officials' activities in this case occurred on land owned and controlled by the Tribes," post, at 392. According to Justice O'Connor, "that factor is not prominent in the Court's analysis," post, at 395. Even a cursory reading of our opinion demonstrates that this is not so. To the contrary, we acknowledge that tribal ownership is a factor in the Montana analysis, and a factor significant enough that it "may sometimes be . . . dispositive," supra, at 360. We simply do not find it dispositive in the present case, when weighed against the State's interest in pursuing offreservation violations of its laws. See supra, at 364 (concluding that "[t]he State's interest in execution of process is considerable" enough to outweigh the tribal interest in selfgovernment "even when it relates to Indian-fee lands"). The concurrence is of course free to disagree with this judgment; but to say that failure to give tribal ownership determinative *371 effect "fails to consider adequately the Tribe's inherent sovereign interests in activities on their land," post, at 401 (opinion of O'Connor, J.), is an exaggeration. The concurrence marshals no authority and scant reasoning to support its judgment that tribal authority over state officers pursuing, on tribe-owned land, off-reservation violations of state law may be "necessary to protect tribal selfgovernment or to control internal relations." Montana, 450 U. S., at 564-565. Self -government and internal relations are not directly at issue here, since the issue is whether the Tribes' law will apply, not to their own members, but to a narrow category of outsiders. And the concurrence does not try to explain how allowing state officers to pursue off-reservation violation of state law "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe," id., at 566. That the actions of these state officers cannot threaten or affect those interests is guaranteed by the limitations of federal constitutional and statutory law to which the officers are fully subject. The concurrence exaggerates and distorts the consequences of our conclusion, supra, at 359, n. 3, that the term "other arrangements" in a passage from Montana referred to other "private consensual" arrangements—so that it did not include the state officials' obtaining of tribal warrants in the present case. That conclusion is correct, as a fuller exposition of the passage from Montana makes clear: "To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands. A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements." 450 U.S., at 565. *372 The Court (this is an opinion, bear in mind, not a statute) obviously did not have in mind States or state officers acting in their governmental capacity; it was referring to private individuals who voluntarily submitted themselves to tribal regulatory jurisdiction by the arrangements that they (or their employers) entered into. This is confirmed by the fact that all four of the cases in the immediately following citation involved private commercial actors. See Confederated Tribes, 447 U. S., at 152 (nonmember purchasers of cigarettes from tribal outlet); Williams v. Lee, 358 U. S., at 217 (general store on the Navajo reservation); Morris v. Hitchcock, 194 U.S. 384 (1904) (ranchers grazing livestock and horses on Indian lands "under contracts with individual members of said tribes"); Buster v. Wright, 135 F. 947, 950 (CA8 1905) (challenge to the "permit tax" charged by a tribe to nonmembers for "the privilege . . . of trading within the borders"). The concurrence concludes from this brief footnote discussion that we would invalidate express or implied cessions of regulatory authority over nonmembers contained in statetribal cooperative agreements, including those pertaining to mutual law enforcement assistance, tax administration assistance, and child support and paternity matters. See post, at 393-394. This is a great overreaching. The footnote does not assert that "a consensual relationship [between a tribe and a State] could never exist," post, at 394 (opinion of O'Connor, J.). It merely asserts that "other arrangements" in the passage from Montana does not include state officers' obtaining of an (unnecessary) tribal warrant. Whether contractual relations between State and tribe can expressly or impliedly confer tribal regulatory jurisdiction over nonmembers—and whether such conferral can be effective to confer adjudicative jurisdiction as well—are questions that may arise in another case, but are not at issue here. Another exaggeration is the concurrence's contention that we "give nonmembers freedom to act with impunity on tribal *373 land based solely on their status as state law enforcement officials," post, at 401 (opinion of O'Connor, J.). We do not say state officers cannot be regulated; we say they cannot be regulated in the performance of their law enforcement duties. Action unrelated to that is potentially subject to tribal control depending on the outcome of Montana analysis. Moreover, even where the issue is whether the officer has acted unlawfully in the performance of his duties, the tribe and tribe members are of course able to invoke the authority of the Federal Government and federal courts (or the state government and state courts) to vindicate constitutional or other federal- and state-law rights. We must comment upon the final paragraphs of Part II of the concurrence's opinion—which bring on stage, in classic fashion, a deus ex machina to extract, from the seemingly insoluble difficulties that the prior writing has created, a happy ending. The concurrence manages to have its cake and eat it too—to hand over state law enforcement officers to the jurisdiction of tribal courts and yet still assure that the officers' traditional immunity (and hence the State's law enforcement interest) will be protected—by simply announcing "that in order to protect government officials, immunity claims should be considered in reviewing tribal court jurisdiction." Post, at 401 (opinion of O'Connor, J.). What wonderful magic. Without so much as a citation (none is available) the concurrence declares the qualified immunity inquiry to be part of the jurisdictional inquiry, thus bringing it within the ken of the federal court at the outset of the case. There are two problems with this declaration. The first is that it is not true. There is no authority whatever for the proposition that absolute- and qualified-immunity defenses pertain to the court's jurisdiction—much less to the tribe's regulatory jurisdiction, which is what is at issue here. (If they did pertain to the court's jurisdiction, they would presumably be nonwaivable. Cf. Idaho v. Coeur d'Alene Tribe of Idaho, 521 U.S. 261, 267 (1997).) And the second *374 problem is that without first determining whether the tribe has regulatory jurisdiction, it is impossible to know which "immunity defenses" the federal court is supposed to consider. The tribe's law on this subject need not be the same as the State's; indeed, the tribe may decide (as did the common law until relatively recently) that there is no immunity defense whatever without a warrant. See California v. Acevedo, 500 U.S. 565, 581 (1991) (Scalia, J., concurring in judgment). One wonders whether, deprived of its deus ex machina, the concurrence would not alter the conclusion it reached in Part I of its opinion, and agree with us that a proper balancing of state and tribal interests would give the Tribes no jurisdiction over state officers pursuing offreservation violations of state law. Finally, it is worth observing that the concurrence's resolution would, for the first time, hold a non-Indian subject to the jurisdiction of a tribal court. The question (which we have avoided) whether tribal regulatory and adjudicatory jurisdiction are coextensive is simply answered by the concurrence in the affirmative. As Justice Souter's separate opinion demonstrates, it surely deserves more considered analysis. * * * Because the Fallon Paiute-Shoshone Tribes lacked legislative authority to restrict, condition, or otherwise regulate the ability of state officials to investigate off-reservation violations of state law, they also lacked adjudicative authority to hear respondent's claim that those officials violated tribal law in the performance of their duties. Nor can the Tribes identify any authority to adjudicate respondent's § 1983 claim. And since the lack of authority is clear, there is no need to exhaust the jurisdictional dispute in tribal court. State officials operating on a reservation to investigate offreservation violations of state law are properly held accountable for tortious conduct and civil rights violations in either state or federal court, but not in tribal court. *375 The judgment of the Court of Appeals is reversed, and the case remanded for further proceedings consistent with our opinion. It is so ordered.

This case presents the question whether a tribal court may assert jurisdiction over civil claims against state officials who entered tribal land to execute a search warrant against a tribe member suspected of having violated state law outside the reservation. I Respondent Hicks[1] is one of about 900 members of the Fallon Paiute-Shoshone of western Nevada. He resides *356 on the ' reservation of approximately 8,000 acres, established by federal statute in 1908, ch. 53, In 1990 Hicks came under suspicion of having killed, off the reservation, a California bighorn sheep, a gross misdemeanor under Nevada law, see A state game warden obtained from state court a search warrant "SUBJECT TO OBTAINING APPROVAL FROM THE FALLON TRIBAL COURT IN AND FOR THE FALLON PAIUTE-SHOSHONE TRIBES." According to the issuing judge, this tribal-court authorization was necessary because "[t]his Court has no jurisdiction on the Fallon Paiute-Shoshone Indian Reservation." App. G to Pet. for Cert. 1. A search warrant was obtained from the tribal court, and the warden, accompanied by a tribal police officer, searched respondent's yard, uncovering only the head of a Rocky Mountain bighorn, a different (and unprotected) species of sheep. Approximately one year later, a tribal police officer reported to the warden that he had observed two mounted bighorn sheep heads in respondent's home. The warden again obtained a search warrant from state court; though this warrant did not explicitly require permission from the see App. F to Pet. for Cert. 2, a tribal-court warrant was nonetheless secured, and respondent's home was again (unsuccessfully) searched by three wardens and additional tribal officers. Respondent, claiming that his sheep heads had been damaged, and that the second search exceeded the bounds of the warrant, brought suit against the Tribal Judge, the tribal officers, the state wardens in their individual and official capacities, and the State of Nevada in the Tribal Court in and for the Fallon Paiute-Shoshone (His claims against all defendants except the state wardens and the State of Nevada were dismissed by directed verdict and are not at issue here.) Respondent's causes of action included trespass to land and chattels, abuse of process, and violation of civil *357 rights—specifically, denial of equal protection, denial of due process, and unreasonable search and seizure, each remediable under Rev. Stat. 1979, 42 U.S. C. 1983. See App. 8-21, 25-29. Respondent later voluntarily dismissed his case against the State and against the state officials in their official capacities, leaving only his suit against those officials in their individual capacities. See The Tribal Court held that it had jurisdiction over the claims, a holding affirmed by the Tribal Appeals Court. The state officials and Nevada then filed an action in Federal District Court seeking a declaratory judgment that the Tribal Court lacked jurisdiction. The District Court granted summary judgment to respondent on the issue of jurisdiction, and also held that the state officials would have to exhaust any claims of qualified immunity in the tribal court. The Ninth Circuit affirmed, concluding that the fact that respondent's home is located on tribe-owned land within the reservation is sufficient to support tribal jurisdiction over civil claims against nonmembers arising from their activities on that land. We granted certiorari, II In this case, which involves claims brought under both tribal and federal law, it is necessary to determine, as to the former, whether the Tribal Court in and for the Fallon Paiute-Shoshone has jurisdiction to adjudicate the alleged tortious conduct of state wardens executing a search warrant for evidence of an off-reservation crime; and, as to the latter, whether the Tribal Court has jurisdiction over claims brought under 42 U.S. C. 1983. We address the former question first. A The principle of Indian law central to this aspect of the case is our holding in : "As to nonmembers a tribe's adjudicative *358 jurisdiction does not exceed its legislative jurisdiction" That formulation leaves open the question whether a tribe's adjudicative jurisdiction over nonmember defendants equals its legislative jurisdiction.[2] We will not have to answer that open question if we determine that the in any event lack legislative jurisdiction in this case. We first inquire, therefore, whether the Fallon Paiute-Shoshone — either as an exercise of their inherent sovereignty, or under grant of federal authority—can regulate state wardens executing a search warrant for evidence of an off-reservation crime. Indian tribes' regulatory authority over nonmembers is governed by the principles set forth in which we have called the "pathmarking case" on the subject, In deciding whether the Crow Tribe could regulate hunting and fishing by nonmembers on land held in fee simple by nonmembers, observed that, under our decision in tribes lack criminal jurisdiction over nonmembers. Although, it continued, "Oliphant only determined inherent tribal authority in criminal matters, the principles on which it relied support the general proposition that the inherent sovereign *359 powers of an Indian tribe do not extend to the activities of nonmembers of the tribe." Where nonmembers are concerned, the "exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation."[3] Both and rejected tribal authority to regulate nonmembers' activities on land over which the tribe could not "assert a landowner's right to occupy and exclude," ; Respondents and the United States argue that since Hicks's home and yard are on tribe-owned land within the reservation, the Tribe may make its exercise of regulatory authority over nonmembers a condition of nonmembers' entry. Not necessarily. While it is certainly true that the non-Indian ownership status of the land was central to the analysis in both and the reason that was so was not that Indian ownership suspends the "general proposition" derived from Oliphant that "the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe" except to the extent "necessary to protect tribal self-government or to control internal relations." 450 U.S., -565. Oliphant itself drew no distinctions based on the status of land. And after announcing the general rule of no jurisdiction over nonmembers, *360 cautioned that "[t]o be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands," —clearly implying that the general rule of applies to both Indian and non-Indian land. The ownership status of land, in other words, is only one factor to consider in determining whether regulation of the activities of nonmembers is "necessary to protect tribal self-government or to control internal relations." It may sometimes be a dispositive factor. Hitherto, the absence of tribal ownership has been virtually conclusive of the absence of tribal civil jurisdiction; with one minor exception, we have never upheld under the extension of tribal civil authority over nonmembers on non-Indian land. Compare, e. g., with Atkinson Trading ; but see (tribe can impose zoning regulation on that 3.1% of land within reservation area closed to public entry that was not owned by the tribe). But the existence of tribal ownership is not alone enough to support regulatory jurisdiction over nonmembers. We proceed to consider, successively, the following questions: whether regulatory jurisdiction over state officers in the present context is "necessary to protect tribal selfgovernment or to control internal relations," and, if not, whether such regulatory jurisdiction has been congressionally conferred. B In we explained that what is necessary to protect tribal self-government and control internal relations can be understood by looking at the examples of tribal power to *361 which referred: tribes have authority "[to punish tribal offenders,] to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members," quoting These examples show, we said, that Indians have "`the right to make their own laws and be ruled by them,' " quoting See also ("In litigation between Indians and non-Indians arising out of conduct on an Indian reservation, resolution of conflicts between the jurisdiction of state and tribal courts has depended, absent a governing Act of Congress, on whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them" (internal quotation marks and citation omitted)). Tribal assertion of regulatory authority over nonmembers must be connected to that right of the Indians to make their own laws and be governed by them. See at Our cases make clear that the Indians' right to make their own laws and be governed by them does not exclude all state regulatory authority on the reservation. State sovereignty does not end at a reservation's border. Though tribes are often referred to as "sovereign" entities, it was "long ago" that "the Court departed from Chief Justice Marshall's view that `the laws of [a State] can have no force' within reservation boundaries." White Mountain Apache[4] "Ordinarily," it is now clear, "an Indian *362 reservation is considered part of the territory of the State." U. S. Dept. of Interior, Federal Indian Law 510, and n. 1 (1958), citing Utah & Northern R. ; see also Organized Village of That is not to say that States may exert the same degree of regulatory authority within a reservation as they do without. To the contrary, the principle that Indians have the right to make their own laws and be governed by them requires "an accommodation between the interests of the and the Federal Government, on the one hand, and those of the State, on the other." ; see also "When onreservation conduct involving only Indians is at issue, state law is generally inapplicable, for the State's regulatory interest is likely to be minimal and the federal interest in encouraging tribal self-government is at its strongest." When, however, state interests outside the reservation are implicated, States may regulate the activities even of tribe members on tribal land, as exemplified by our decision in Confederated In that case, Indians were selling cigarettes on their reservation to nonmembers from off reservation, without collecting the state cigarette tax. We held that the State could require the to collect the tax from nonmembers, and could "impose at least `minimal' burdens on the Indian retailer to aid in enforcing and collecting the tax," It is also well established in our precedent that States have criminal jurisdiction over reservation Indians for crimes committed (as was the alleged poaching in this case) off the reservation. See Mescalero Apache *363 While it is not entirely clear from our precedent whether the last mentioned authority entails the corollary right to enter a reservation (including Indian-fee lands) for enforcement purposes, several of our opinions point in that direction. In Confederated we explicitly reserved the question whether state officials could seize cigarettes held for sale to nonmembers in order to recover the taxes due. See In Utah & Northern R. Co., however, we observed that "[i]t has been held that process of [state] courts may run into an Indian reservation of this kind, where the subject-matter or controversy is otherwise within their cognizance,"[5] Shortly thereafter, we considered, in United whether Congress could enact a law giving federal courts jurisdiction over various common-law, violent crimes committed by Indians on a reservation within a State. We expressed skepticism that the Indian Commerce Clause could justify this assertion of authority in derogation of state jurisdiction, but ultimately accepted the argument that the law "does not interfere with the process of the State courts within the reservation, nor with the operation of State laws upon white people found there. Its effect is confined to the acts of an Indian of some tribe, of a criminal character, committed within the limits of the reservation. "It seems to us that this is within the competency of Congress." The Court's references to "process" in Utah & Northern R. Co. and Kagama, and the Court's concern in Kagama over possible federal encroachment on state prerogatives, suggest *364 state authority to issue search warrants in cases such as the one before us. ("Process" is defined as "any means used by a court to acquire or exercise its jurisdiction over a person or over specific property," Black's Law Dictionary 1084 (5th ed. 1979), and is equated in criminal cases with a warrant,) It is noteworthy that Kagama recognized the right of state laws to "operat[e] upon [nonIndians] found" within a reservation, but did not similarly limit to non-Indians or the property of non-Indians the scope of the process of state courts. This makes perfect sense, since, as we explained in the context of federal enclaves, the reservation of state authority to serve process is necessary to "prevent [such areas] from becoming an asylum for fugitives from justice." Fort Leavenworth R.[6] We conclude today, in accordance with these prior statements, that tribal authority to regulate state officers in executing process related to the violation, off reservation, of state laws is not essential to tribal self-government or internal relations—to "the right to make laws and be ruled by them." The State's interest in execution of process is considerable, and even when it relates to Indian-fee lands it no more impairs the tribe's self-government than federal enforcement of federal law impairs state government. Respondents argue that, even conceding the State's general interest in enforcing its off-reservation poaching law on the reservation, Nevada's interest in this suit is minimal, because it is a suit against state officials in their individual *365 capacities. We think, however, that the distinction between individual and official capacity suits is irrelevant. To paraphrase our opinion in which upheld a federal statute permitting federal officers to remove to federal court state criminal proceedings brought against them for their official actions, a State "can act only through its officers and agents," and if a tribe can "affix penalties to acts done under the immediate direction of the [state] government, and in obedience to its laws," "the operations of the [state] government may at any time be arrested at the will of the [tribe]." Cf. C The States' inherent jurisdiction on reservations can of course be stripped by Congress, see But with regard to the jurisdiction at issue here that has not occurred. The Government's assertion that "[a]s a general matter, although state officials have jurisdiction to investigate and prosecute crimes on a reservation that exclusively involve non-Indians, they do not have jurisdiction with respect to crimes involving Indian perpetrators or Indian victims," Brief for United States as Amicus Curiae 12-13, n. 7, is misleading. The statutes upon which it relies, see show that the last half of the statement, like the first, is limited to "crimes on a reservation. " Sections 1152 and 1153 of Title 18, which give United States and tribal criminal law generally exclusive application, apply only to crimes committed in Indian country; Public Law 280, codified at 18 U.S. C. 1162, which permits some state jurisdiction as an exception to this rule, is similarly limited. And 25 U.S. C. *366 2804, which permits federal-state agreements enabling state law enforcement agents to act on reservations, applies only to deputizing them for the enforcement of federal or tribal criminal law. Nothing in the federal statutory scheme prescribes, or even remotely suggests, that state officers cannot enter a reservation (including Indian-fee land) to investigate or prosecute violations of state law occurring off the reservation. To the contrary, 25 U.S. C. 2806 affirms that "the provisions of this chapter alter neither the law enforcement, investigative, or judicial authority of any State, or political subdivision or agency thereof" III We turn next to the contention of respondent and the Government that the tribal court, as a court of general jurisdiction, has authority to entertain federal claims under 1983.[7] It is certainly true that state courts of "general jurisdiction" can adjudicate cases invoking federal statutes, such as 1983, absent congressional specification to the contrary. "Under [our] system of dual sovereignty, we have consistently held that state courts have inherent authority, and are thus presumptively competent, to adjudicate claims arising under the laws of the United States," That this would be the case was assumed by the Framers, see The Federalist No. 82, pp. 492-493 (C. Rossiter ed. 1961). Indeed, that state courts could enforce federal law is presumed by Article III of the *367 Constitution, which leaves to Congress the decision whether to create lower federal courts at all. This historical and constitutional assumption of concurrent state-court jurisdiction over federal-law cases is completely missing with respect to tribal courts. Respondents' contention that tribal courts are courts of "general jurisdiction" is also quite wrong. A state court's jurisdiction is general, in that it "lays hold of all subjects of litigation between parties within its jurisdiction, though the causes of dispute are relative to the laws of the most distant part of the globe." Tribal courts, it should be clear, cannot be courts of general jurisdiction in this sense, for a tribe's inherent adjudicative jurisdiction over nonmembers is at most only as broad as its legislative jurisdiction. See[8] It is true that some statutes proclaim tribal-court jurisdiction over certain questions of federal law. See, e. g., 25 U.S. C. 1911(a) ; 12 U.S. C. 1715z—13(g)(5) (jurisdiction over mortgage foreclosure actions brought by the Secretary of Housing and Urban Development against reservation *368 homeowners). But no provision in federal law provides for tribal-court jurisdiction over 1983 actions. Furthermore, tribal-court jurisdiction would create serious anomalies, as the Government recognizes, because the general federal-question removal statute refers only to removal from state court, see 28 U.S. C. 1441. Were 1983 claims cognizable in tribal court, defendants would inexplicably lack the right available to state-court 1983 defendants to seek a federal forum. The Government thinks the omission of reference to tribal courts in 1441 unproblematic. Since, it argues, "[i]t is doubtful that Congress intended to deny tribal court defendants the right given state court defendants to elect a federal forum for the adjudication of causes of action under federal law," we should feel free to create that right by permitting the tribalcourt defendant to obtain a federal-court injunction against the action, effectively forcing it to be refiled in federal court. Brief for United States as Amicus Curiae 25-26. The sole support for devising this extraordinary remedy is El Paso Natural Gas where we approved a similar procedure with regard to claims under the Price-Anderson Act brought in tribal court. In Neztsosie, however, the claims were not initially federal claims, but Navajo tort claims that the Price-Anderson Act provided "shall be deemed to be action[s] arising under" 42 U.S. C. 2210; there was little doubt that the tribal court had jurisdiction over such tort claims, see n. 4. And for the propriety of the injunction in Neztsosie, we relied not on 1441, but on the removal provision of the Price-Anderson Act, 42 U.S. C. 2210(n)(2). Although, like 1441, that provision referred only to removal from state courts, in light of the Act's detailed and distinctive provisions for the handling of "nuclear incident" cases in federal court, see we thought it clear Congress envisioned the defendant's ability to get into federal court in all instances. *369 Not only are there missing here any distinctive federal-court procedures, but in order even to confront the question whether an unspecified removal power exists, we must first attribute to tribal courts jurisdiction that is not apparent. Surely the simpler way to avoid the removal problem is to conclude (as other indications suggest anyway) that tribal courts cannot entertain 1983 suits. IV The last question before us is whether petitioners were required to exhaust their jurisdictional claims in Tribal Court before bringing them in Federal District Court. See National Farmers Union Ins. In National Farmers Union we recognized exceptions to the exhaustion requirement, where "an assertion of tribal jurisdiction is motivated by a desire to harass or is conducted in bad faith, or where the action is patently violative of express jurisdictional prohibitions, or where exhaustion would be futile because of the lack of an adequate opportunity to challenge the court's jurisdiction," None of these exceptions seems applicable to this case, but we added a broader exception in : "[w]hen it is plain that no federal grant provides for tribal governance of nonmembers' conduct on land covered by `s main rule," so the exhaustion requirement "would serve no purpose other than delay." -460, and n. 14. Though this exception too is technically inapplicable, the reasoning behind it is not. Since it is clear, as we have discussed, that tribal courts lack jurisdiction over state officials for causes of action relating to their performance of official duties, adherence to the tribal exhaustion requirement in such cases "would serve no purpose other than delay," and is therefore unnecessary. *370 V Finally, a few words in response to the concurrence of Justice O'Connor, which is in large part a dissent from the views expressed in this opinion.[9] The principal point of the concurrence is that our reasoning "gives only passing consideration to the fact that the state officials' activities in this case occurred on land owned and controlled by the" post, at 392. According to Justice O'Connor, "that factor is not prominent in the Court's analysis," post, at 395. Even a cursory reading of our opinion demonstrates that this is not so. To the contrary, we acknowledge that tribal ownership is a factor in the analysis, and a factor significant enough that it "may sometimes be dispositive," We simply do not find it dispositive in the present case, when weighed against the State's interest in pursuing offreservation violations of its laws. See The concurrence is of course free to disagree with this judgment; but to say that failure to give tribal ownership determinative *371 effect "fails to consider adequately the Tribe's inherent sovereign interests in activities on their land," post, at 401 (opinion of O'Connor, J.), is an exaggeration. The concurrence marshals no authority and scant reasoning to support its judgment that tribal authority over state officers pursuing, on tribe-owned land, off-reservation violations of state law may be "necessary to protect tribal selfgovernment or to control internal relations." 450 U. S., -565. Self -government and internal relations are not directly at issue here, since the issue is whether the ' law will apply, not to their own members, but to a narrow category of outsiders. And the concurrence does not try to explain how allowing state officers to pursue off-reservation violation of state law "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe," That the actions of these state officers cannot threaten or affect those interests is guaranteed by the limitations of federal constitutional and statutory law to which the officers are fully subject. The concurrence exaggerates and distorts the consequences of our that the term "other arrangements" in a passage from referred to other "private consensual" arrangements—so that it did not include the state officials' obtaining of tribal warrants in the present case. That is correct, as a fuller exposition of the passage from makes clear: "To be sure, Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands. A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements." *3 The Court (this is an opinion, bear in mind, not a statute) obviously did not have in mind States or state officers acting in their governmental capacity; it was referring to private individuals who voluntarily submitted themselves to tribal regulatory jurisdiction by the arrangements that they (or their employers) entered into. This is confirmed by the fact that all four of the cases in the immediately following citation involved private commercial actors. See Confederated ; ; ; The concurrence concludes from this brief footnote discussion that we would invalidate express or implied cessions of regulatory authority over nonmembers contained in statetribal cooperative agreements, including those pertaining to mutual law enforcement assistance, tax administration assistance, and child support and paternity matters. See post, at 393-394. This is a great overreaching. The footnote does not assert that "a consensual relationship [between a tribe and a State] could never exist," post, at 394 (opinion of O'Connor, J.). It merely asserts that "other arrangements" in the passage from does not include state officers' obtaining of an (unnecessary) tribal warrant. Whether contractual relations between State and tribe can expressly or impliedly confer tribal regulatory jurisdiction over nonmembers—and whether such conferral can be effective to confer adjudicative jurisdiction as well—are questions that may arise in another case, but are not at issue here. Another exaggeration is the concurrence's contention that we "give nonmembers freedom to act with impunity on tribal *373 land based solely on their status as state law enforcement officials," post, at 401 (opinion of O'Connor, J.). We do not say state officers cannot be regulated; we say they cannot be regulated in the performance of their law enforcement duties. Action unrelated to that is potentially subject to tribal control depending on the outcome of analysis. Moreover, even where the issue is whether the officer has acted unlawfully in the performance of his duties, the tribe and tribe members are of course able to invoke the authority of the Federal Government and federal courts (or the state government and state courts) to vindicate constitutional or other federal- and state-law rights. We must comment upon the final paragraphs of Part II of the concurrence's opinion—which bring on stage, in classic fashion, a deus ex machina to extract, from the seemingly insoluble difficulties that the prior writing has created, a happy ending. The concurrence manages to have its cake and eat it too—to hand over state law enforcement officers to the jurisdiction of tribal courts and yet still assure that the officers' traditional immunity (and hence the State's law enforcement interest) will be protected—by simply announcing "that in order to protect government officials, immunity claims should be considered in reviewing tribal court jurisdiction." Post, at 401 (opinion of O'Connor, J.). What wonderful magic. Without so much as a citation (none is available) the concurrence declares the qualified immunity inquiry to be part of the jurisdictional inquiry, thus bringing it within the ken of the federal court at the outset of the case. There are two problems with this declaration. The first is that it is not true. There is no authority whatever for the proposition that absolute- and qualified-immunity defenses pertain to the court's jurisdiction—much less to the tribe's regulatory jurisdiction, which is what is at issue here.) And the second *374 problem is that without first determining whether the tribe has regulatory jurisdiction, it is impossible to know which "immunity defenses" the federal court is supposed to consider. The tribe's law on this subject need not be the same as the State's; indeed, the tribe may decide (as did the common law until relatively recently) that there is no immunity defense whatever without a warrant. See One wonders whether, deprived of its deus ex machina, the concurrence would not alter the it reached in Part I of its opinion, and agree with us that a proper balancing of state and tribal interests would give the no jurisdiction over state officers pursuing offreservation violations of state law. Finally, it is worth observing that the concurrence's resolution would, for the first time, hold a non-Indian subject to the jurisdiction of a tribal court. The question (which we have avoided) whether tribal regulatory and adjudicatory jurisdiction are coextensive is simply answered by the concurrence in the affirmative. As Justice Souter's separate opinion demonstrates, it surely deserves more considered analysis. * * * Because the Fallon Paiute-Shoshone lacked legislative authority to restrict, condition, or otherwise regulate the ability of state officials to investigate off-reservation violations of state law, they also lacked adjudicative authority to hear respondent's claim that those officials violated tribal law in the performance of their duties. Nor can the identify any authority to adjudicate respondent's 1983 claim. And since the lack of authority is clear, there is no need to exhaust the jurisdictional dispute in tribal court. State officials operating on a reservation to investigate offreservation violations of state law are properly held accountable for tortious conduct and civil rights violations in either state or federal court, but not in tribal court. *375 The judgment of the Court of Appeals is reversed, and the case remanded for further proceedings consistent with our opinion. It is so ordered.

Justice Souter

concurring

Nevada v. Hicks

2001-06-25

https://www.courtlistener.com/opinion/118454/nevada-v-hicks/

https://www.courtlistener.com/api/rest/v3/clusters/118454/

2000-080

I agree that the Fallon Paiute-Shoshone Tribal Court had no jurisdiction to entertain Hicks's claims against the petitioning state officers here, and I join the Court's opinion. While I agree with the Court's analysis as well as its conclusion, I would reach that point by a different route. Like the Court, I take Montana v. United States, 450 U.S. 544 (1981), to be the source of the first principle on tribal-court civil jurisdiction, see Atkinson Trading Co. v. Shirley, 532 U.S. 645, 659 (2001) (Souter, J., concurring). But while the Court gives emphasis to measuring tribal authority here in light of the State's interest in executing its own legal process to enforce state law governing off-reservation conduct, ante, at 360-365, I would go right to Montana `s rule that a tribe's civil jurisdiction generally stops short of nonmember defendants, 450 U.S., at 565, subject only to two exceptions, one turning on "consensual relationships," the other on respect for "the political integrity, the economic security, or the health or welfare of the tribe," id., at 566.[1] Montana applied this presumption against tribal jurisdiction to nonmember conduct on fee land within a reservation; I would also apply it where, as here, a nonmember acts on tribal or trust land, and I would thus make it explicit that land status within a reservation is not a primary jurisdictional *376 fact, but is relevant only insofar as it bears on the application of one of Montana `s exceptions to a particular case. Insofar as I rest my conclusion on the general jurisdictional presumption, it follows for me that, although the holding in this case is "limited to the question of tribal-court jurisdiction over state officers enforcing state law," ante, at 358, n. 2, one rule independently supporting that holding (that as a general matter "the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe," ante, at 359) is not so confined. I Petitioners are certainly correct that "[t]ribal adjudicatory jurisdiction over nonmembers is . . . ill-defined," Reply Brief for Petitioners 16, since this Court's own pronouncements on the issue have pointed in seemingly opposite directions. Compare, e. g., Santa Clara Pueblo v. Martinez, 436 U.S. 49, 65 (1978) ("Tribal courts have repeatedly been recognized as appropriate forums for the exclusive adjudication of disputes affecting important personal and property interests of both Indians and non-Indians"), and United States v. Mazurie, 419 U.S. 544, 557 (1975) ("Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory"), with, e. g., Oliphant v. Suquamish Tribe, 435 U.S. 191, 209 (1978) ("`[T]he limitation upon [tribes'] sovereignty amounts to the right of governing every person within their limits except themselves ` " (quoting Fletcher v. Peck, 6 Cranch 87, 147 (1810))). Oliphant, however, clarified tribal courts' criminal jurisdiction (in holding that they had none as to non-Indians), and that decision is now seen as a significant step on the way to Montana, "the pathmarking case concerning tribal civil authority over nonmembers," Strate v. A-1 Contractors, 520 U.S. 438, 445 (1997). The path marked best is the rule *377 that, at least as a presumptive matter, tribal courts lack civil jurisdiction over nonmembers.[2] To be sure, Montana does not of its own force resolve the jurisdictional issue in this case. There, while recognizing that the parties had "raised broad questions about the power of the Tribe to regulate [the conduct of] non-Indians on the reservation," we noted that the issue before us was a "narrow one." 450 U.S., at 557. Specifically, we said, the question presented concerned only the power of an Indian tribe to regulate the conduct of nonmembers "on reservation land owned in fee by nonmembers of the Tribe." Ibid. Here, it is undisputed, the acts complained of occurred on reservation land "controlled by a tribe." Pet. for Cert. 24. But although the distinction between tribal and fee land (and, accordingly, between Montana and this case) surely exists, it does not in my mind call for a different result. I see the legal principles that animated our presumptive preclusion of tribal jurisdiction in Montana as counseling a similar rule as to regulatory, and hence adjudicatory, jurisdiction here. In Montana, the Court began its discussion of tribes' "inherent authority" by noting that "the Indian tribes have lost many of the attributes of sovereignty." 450 U.S., at 563. *378 In "distinguish[ing] between those inherent powers retained by the tribe and those divested," id., at 564, the Court relied on a portion of the opinion in United States v. Wheeler, 435 U.S. 313, 326 (1978), from which it quoted at length: "`The areas in which . . . implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and non- members of the tribe. . . . "`These limitations rest on the fact that the dependent status of Indian tribes within our territorial jurisdiction is necessarily inconsistent with their freedom independently to determine their external relations. But the powers of self-government, including the power to prescribe and enforce internal criminal laws, are of a different type. They involve only the relations among members of a tribe. Thus, they are not such powers as would necessarily be lost by virtue of a tribe's dependent status.' " Montana, supra, at 564. The emphasis in these passages (supplied by the Montana Court, not by me) underscores the distinction between tribal members and nonmembers, and seems clearly to indicate, without restriction to the criminal law, that the inherent authority of the tribes has been preserved over the former but not the latter. In fact, after quoting Wheeler, the Court invoked Oliphant, supra, which (as already noted) had imposed a per se bar to tribal-court criminal jurisdiction over non-Indians, even with respect to conduct occurring on tribal land. The Montana Court remarked that, "[t]hough Oliphant only determined inherent tribal authority in criminal matters, the principles on which it relied" support a more "general proposition" applicable in civil cases as well, namely, that "the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe." 450 U.S., at 565. Accordingly, the Court in Montana repeatedly pressed the member-nonmember distinction, reiterating *379 at one point, for example, that while "the Indian tribes retain their inherent power to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members," the "exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation." Id., at 564; cf. Oliphant v. Schlie, 544 F.2d 1007, 1015 (CA9 1976) (Kennedy, J., dissenting) ("The concept of sovereignty applicable to Indian tribes need not include the power to prosecute nonmembers. This power, unlike the ability to maintain law and order on the reservation and to exclude nondesireable nonmembers, is not essential to the tribe's identity or its self-governing status"), rev'd sub nom. Oliphant v. Suquamish Tribe, 435 U.S. 191 (1978). To Montana `s "general proposition" confining the subjects of tribal jurisdiction to tribal members, the Court appended two exceptions that could support tribal jurisdiction in some civil matters. First, a tribe may "regulate . . . the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements." And second, a tribe may regulate nonmember conduct that "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." 450 U.S., at 565-566.[3] But unless one of these exceptions applies, the "general *380 proposition" governs and the tribe's civil jurisdiction does "not extend to the activities of nonmembers of the tribe." In Strate, we expressly extended the Montana framework, originally applied as a measure of tribes' civil regulatory jurisdiction, to limit tribes' civil adjudicatory jurisdiction. We repeated that "absent express authorization by federal statute or treaty, tribal jurisdiction over the conduct of nonmembers exists only in limited circumstances." 520 U.S., at 445. Quoting Montana, we further explained that "[i]n the main" (that is, subject to the two exceptions outlined in the Montana opinion), "`the inherent sovereign powers of an Indian tribe'—those powers a tribe enjoys apart from express provision by treaty or statute—'do not extend to the activities of nonmembers of the tribe.' " 520 U.S., at 445-446. Equally important for purposes here was our treatment of the following passage from Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 (1987), which seemed to state a more expansive jurisdictional position and which had been cited by the Tribal Court in Strate in support of broad tribal-court civil jurisdiction over nonmembers: "`Tribal authority over the activities of non-Indians on reservation lands is an important part of tribal sovereignty. See Montana v. United States, 450 U.S. 544, 565-566 (1981); Washington v. Confederated Tribes of Colville Indian Reservation, 447 U.S. 134, 152-153 (1980); Fisher v. District Court [of Sixteenth Judicial Dist. of Mont.], 424 U. S. [382,] 387-389 [(1976)]. Civil jurisdiction over such activities presumptively lies in the tribal courts unless affirmatively limited by a specific treaty provision or federal statute . . . .' [480 U. S.], at 18." 520 U.S., at 451. The Strate petitioners fastened upon the statement that "civil jurisdiction over" the activities of nonmembers on reservation lands "presumptively lies in the tribal courts." But we resisted the overbreadth of the Iowa Mutual dictum. *381 We said that the passage "scarcely supports the view that the Montana rule does not bear on tribal-court adjudicatory authority in cases involving nonmember defendants," 520 U.S., at 451-452, and stressed the "three informative citations" accompanying the statement, which mark the true contours of inherent tribal authority over nonmembers: "The first citation points to the passage in Montana in which the Court advanced `the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe,' with two prime exceptions. The case cited second is Washington v. Confederated Tribes of Colville Reserva- tion, a decision the Montana Court listed as illustrative of the first Montana exception . . . . The third case noted in conjunction with the Iowa Mutual statement is Fisher v. District Court of Sixteenth Judicial Dist. of Mont., a decision the Montana Court cited in support of the second Montana exception . . . ." Id., at 452 (citations omitted). Accordingly, in explaining and distinguishing Iowa Mutual, we confirmed in Strate what we had indicated in Montana: that as a general matter, a tribe's civil jurisdiction does not extend to the "activities of non-Indians on reservation lands," Iowa Mutual, supra, at 18, and that the only such activities that trigger civil jurisdiction are those that fit within one of Montana `s two exceptions. After Strate, it is undeniable that a tribe's remaining inherent civil jurisdiction to adjudicate civil claims arising out of acts committed on a reservation depends in the first instance on the character of the individual over whom jurisdiction is claimed, not on the title to the soil on which he acted. The principle on which Montana and Strate were decided (like Oliphant before them) looks first to human relationships, not land records, and it should make no difference per se whether acts committed on a reservation *382 occurred on tribal land or on land owned by a nonmember individual in fee. It is the membership status of the unconsenting party, not the status of real property, that counts as the primary jurisdictional fact.[4] II Limiting tribal-court civil jurisdiction this way not only applies the animating principle behind our precedents, but fits with historical assumptions about tribal authority and serves sound policy. As for history, Justice Stevens has observed that "[i]n sharp contrast to the tribes' broad powers over their own members, tribal powers over nonmembers have always been narrowly confined." Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 171 (1982) (dissenting opinion). His point is exemplified by the early treaties with those who became known as the five civilized Tribes, which treaties "specifically granted the right of self-government to the tribes [but] specifically excluded jurisdiction over nonmembers." Id., at 171, n. 21 (citing Treaty with the Cherokees, Art. 5, 7 Stat. 481 (1835), Treaty with the Choctaws and Chickasaws, Art. 7, 11 Stat. 612 (1855), and Treaty with the Creeks and Seminoles, Art. 15, 11 Stat. 703 (1856)). In a similar vein, referring to 19th-century federal statutes setting the jurisdiction of the courts of those five Tribes, this Court said in In re Mayfield, 141 U.S. 107, 116 (1891), that the "general object" of such measures was "to vest in the courts of the [Indian] nation jurisdiction of all controversies between Indians, or where a member of the nation is the only party to the proceeding, and to reserve to the courts *383 of the United States jurisdiction of all actions to which its own citizens are parties on either side." And, in fact, to this very day, general federal law prohibits Courts of Indian Offenses (tribunals established by regulation for tribes that have not organized their own tribal court systems) from exercising jurisdiction over unconsenting nonmembers. Such courts have "[c]ivil jurisdiction" only of those actions arising within their territory "in which the defendant is an Indian, and of all other suits between Indians and non-Indians which are brought before the court by stipulation of the parties." 25 CFR § 11.103(a) (2000). A rule generally prohibiting tribal courts from exercising civil jurisdiction over nonmembers, without looking first to the status of the land on which individual claims arise, also makes sense from a practical standpoint, for tying tribes' authority to land status in the first instance would produce an unstable jurisdictional crazy quilt. Because land on Indian reservations constantly changes hands (from tribes to nonmembers, from nonmembers to tribal members, and so on), a jurisdictional rule under which land status was dispositive would prove extraordinarily difficult to administer and would provide little notice to nonmembers, whose susceptibility to tribal-court jurisdiction would turn on the most recent property conveyances. Cf. Hodel v. Irving, 481 U.S. 704, 718 (1987) (noting the difficulties that attend the "extreme fractionation of Indian lands"). The ability of nonmembers to know where tribal jurisdiction begins and ends, it should be stressed, is a matter of real, practical consequence given "[t]he special nature of [Indian] tribunals," Duro v. Reina, 495 U.S. 676, 693 (1990), which differ from traditional American courts in a number of significant respects. To start with the most obvious one, it has been understood for more than a century that the Bill of Rights and the Fourteenth Amendment do not of their own force apply to Indian tribes. See Talton v. Mayes, 163 U.S. 376, 382-385 (1896); F. Cohen, Handbook of Federal Indian *384 Law 664-665 (1982 ed.) (hereinafter Cohen) ("Indian tribes are not states of the union within the meaning of the Constitution, and the constitutional limitations on states do not apply to tribes"). Although the Indian Civil Rights Act of 1968 (ICRA) makes a handful of analogous safeguards enforceable in tribal courts, 25 U.S. C. § 1302, "the guarantees are not identical," Oliphant, 435 U. S., at 194,[5] and there is a "definite trend by tribal courts" toward the view that they "ha[ve] leeway in interpreting" the ICRA's due process and equal protection clauses and "need not follow the U. S. Supreme Court precedents `jot-for-jot,' " Newton, Tribal Court Praxis: One Year in the Life of Twenty Indian Tribal Courts, 22 Am. Indian L. Rev. 285, 344, n. 238 (1998). In any event, a presumption against tribal-court civil jurisdiction squares with one of the principal policy considerations underlying Oliphant, namely, an overriding concern that citizens who are not tribal members be "protected . . . from unwarranted intrusions on their personal liberty," 435 U.S., at 210. Tribal courts also differ from other American courts (and often from one another) in their structure, in the substantive law they apply, and in the independence of their judges. Although some modern tribal courts "mirror American courts" and "are guided by written codes, rules, procedures, and guidelines," tribal law is still frequently unwritten, being based instead "on the values, mores, and norms of a tribe and expressed in its customs, traditions, and practices," and is often "handed down orally or by example from one generation to another." Melton, Indigenous Justice Systems and Tribal Society, 79 Judicature 126, 130-131 (1995). The resulting law applicable in tribal courts is a complex "mix of tribal codes and federal, state, and traditional law," National American Indian Court Judges Assn., Indian *385 Courts and the Future 43 (1978), which would be unusually difficult for an outsider to sort out. Hence the practical importance of being able to anticipate tribal jurisdiction by reference to a fact more readily knowable than the title status of a particular plot of land. One further consideration confirms the point. It is generally accepted that there is no effective review mechanism in place to police tribal courts' decisions on matters of nontribal law, since tribal-court judgments based on state or federal law can be neither removed nor appealed to state or federal courts. Cf., e. g., 28 U.S. C. § 1441(a) (removal of "any civil action brought in a State court of which the district courts of the United States have original jurisdiction"); § 1257(a) (Supreme Court review of "judgments or decrees rendered by the highest court of a State" where federal law implicated). The result, of course, is a risk of substantial disuniformity in the interpretation of state and federal law, a risk underscored by the fact that "[t]ribal courts are often `subordinate to the political branches of tribal governments,' " Duro, supra, at 693 (quoting Cohen 334-335). III There is one loose end. The panel majority in the Ninth Circuit held that "the Montana presumption against tribal court jurisdiction does not apply in this case." 196 F.3d 1020, 1028 (1999). Since we have held otherwise, should we now remand for application of the correct law? There is room for reasonable disagreement on this point, see post, at 396 (O'Connor, J., concurring in part and concurring in judgment), but on balance I think a remand is unnecessary. The Court's analysis of opposing state and tribal interests answers the opinion of the Ninth Circuit majority; in substance, the issues subject to the Court of Appeals's principal concern have been considered here. My own focus on the Montana presumption was, of course, addressed by the panel (albeit unsympathetically), and the only question that *386 might now be considered by the Circuit on my separate approach to the case is the applicability of the second Montana exception. But as Judge Rymer indicated in her dissent, the uncontested fact that the Tribal Court itself authorized service of the state warrant here bars any serious contention that the execution of that warrant adversely affected the Tribes' political integrity. See 196 F.3d, at 1033— 1034. Thus, even if my alternative rationale exclusively governed the outcome, remand would be pure formality.

I agree that the Fallon Paiute-Shoshone Tribal Court had no jurisdiction to entertain Hicks's claims against the petitioning state officers here, and I join the Court's opinion. While I agree with the Court's analysis as well as its conclusion, I would reach that point by a different route. Like the Court, I take to be the source of the first principle on tribal-court civil jurisdiction, see Atkinson Trading But while the Court gives emphasis to measuring tribal authority here in light of the State's interest in executing its own legal process to enforce state law governing off-reservation conduct, ante, at 360-3, I would go right to `s rule that a tribe's civil jurisdiction generally stops short of nonmember defendants, subject only to two exceptions, one turning on "consensual relationships," the other on respect for "the political integrity, the economic security, or the health or welfare of the tribe,"[1] applied this presumption against tribal jurisdiction to nonmember conduct on fee land within a reservation; I would also apply it where, as here, a nonmember acts on tribal or trust land, and I would thus make it explicit that land status within a reservation is not a primary jurisdictional *376 fact, but is relevant only insofar as it bears on the application of one of `s exceptions to a particular case. Insofar as I rest my conclusion on the general jurisdictional presumption, it follows for me that, although the holding in this case is "limited to the question of tribal-court jurisdiction over state officers enforcing state law," ante, at 358, n. 2, one rule independently supporting that holding (that as a general matter "the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe," ante, at 359) is not so confined. I Petitioners are certainly correct that "[t]ribal adjudicatory jurisdiction over nonmembers is ill-defined," Reply Brief for Petitioners 16, since this Court's own pronouncements on the issue have pointed in seemingly opposite directions. Compare, e. g., Santa Clara and United with, e. g., however, clarified tribal courts' criminal jurisdiction (in holding that they had none as to non-Indians), and that decision is now seen as a significant step on the way to "the pathmarking case concerning tribal civil authority over nonmembers," The path marked best is the rule *377 that, at least as a presumptive matter, tribal courts lack civil jurisdiction over nonmembers.[2] To be sure, does not of its own force resolve the jurisdictional issue in this case. There, while recognizing that the parties had "raised broad questions about the power of the Tribe to regulate [the conduct of] non-Indians on the reservation," we noted that the issue before us was a "narrow one." 450 U.S., at Specifically, we said, the question presented concerned only the power of an Indian tribe to regulate the conduct of nonmembers "on reservation land owned in fee by nonmembers of the Tribe." Here, it is undisputed, the acts complained of occurred on reservation land "controlled by a tribe." Pet. for Cert. 24. But although the distinction between tribal and fee land (and, accordingly, between and this case) surely exists, it does not in my mind call for a different result. I see the legal principles that animated our presumptive preclusion of tribal jurisdiction in as counseling a similar rule as to regulatory, and hence adjudicatory, jurisdiction here. In the Court began its discussion of tribes' "inherent authority" by noting that "the Indian tribes have lost many of the attributes of sovereignty." *378 In "distinguish[ing] between those inherent powers retained by the tribe and those divested," the Court relied on a portion of the opinion in United from which it quoted at length: "`The areas in which implicit divestiture of sovereignty has been held to have occurred are those involving the relations between an Indian tribe and non- members of the tribe. "`These limitations rest on the fact that the dependent status of Indian tribes within our territorial jurisdiction is necessarily inconsistent with their freedom independently to determine their external relations. But the powers of self-government, including the power to prescribe and enforce internal criminal laws, are of a different type. They involve only the relations among members of a tribe. Thus, they are not such powers as would necessarily be lost by virtue of a tribe's dependent status.' " The emphasis in these passages (supplied by the Court, not by me) underscores the distinction between tribal members and nonmembers, and seems clearly to indicate, without restriction to the criminal law, that the inherent authority of the tribes has been preserved over the former but not the latter. In fact, after quoting Wheeler, the Court invoked which (as already noted) had imposed a per se bar to tribal-court criminal jurisdiction over non-Indians, even with respect to conduct occurring on tribal land. The Court remarked that, "[t]hough only determined inherent tribal authority in criminal matters, the principles on which it relied" support a more "general proposition" applicable in civil cases as well, namely, that "the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe." Accordingly, the Court in repeatedly pressed the member-nonmember distinction, reiterating *379 at one point, for example, that while "the Indian tribes retain their inherent power to determine tribal membership, to regulate domestic relations among members, and to prescribe rules of inheritance for members," the "exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes, and so cannot survive without express congressional delegation." ; cf. v. Schlie, ("The concept of sovereignty applicable to Indian tribes need not include the power to prosecute nonmembers. This power, unlike the ability to maintain law and order on the reservation and to exclude nondesireable nonmembers, is not essential to the tribe's identity or its self-governing status"), rev'd sub nom. To `s "general proposition" confining the subjects of tribal jurisdiction to tribal members, the Court appended two exceptions that could support tribal jurisdiction in some civil matters. First, a tribe may "regulate the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements." And second, a tribe may regulate nonmember conduct that "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." -566.[3] But unless one of these exceptions applies, the "general *380 proposition" governs and the tribe's civil jurisdiction does "not extend to the activities of nonmembers of the tribe." In Strate, we expressly extended the framework, originally applied as a measure of tribes' civil regulatory jurisdiction, to limit tribes' civil adjudicatory jurisdiction. We repeated that "absent express authorization by federal statute or treaty, tribal jurisdiction over the conduct of nonmembers exists only in limited circumstances." 520 U.S., at Quoting we further explained that "[i]n the main" (that is, subject to the two exceptions outlined in the opinion), "`the inherent sovereign powers of an Indian tribe'—those powers a tribe enjoys apart from express provision by treaty or statute—'do not extend to the activities of nonmembers of the tribe.' " 520 U.S., at -446. Equally important for purposes here was our treatment of the following passage from Iowa Mut. Ins. which seemed to state a more expansive jurisdictional position and which had been cited by the Tribal Court in Strate in support of broad tribal-court civil jurisdiction over nonmembers: "`Tribal authority over the activities of non-Indians on reservation lands is an important part of tribal sovereignty. See 5-566 ; ; Fisher v. District Court [of Sixteenth Judicial Dist. of Mont.], 424 U. S. [382,] 387-389 []. Civil jurisdiction over such activities presumptively lies in the tribal courts unless affirmatively limited by a specific treaty provision or federal statute' [480 U. S.]," The Strate petitioners fastened upon the statement that "civil jurisdiction over" the activities of nonmembers on reservation lands "presumptively lies in the tribal courts." But we resisted the overbreadth of the Iowa dictum. *381 We said that the passage "scarcely supports the view that the rule does not bear on tribal-court adjudicatory authority in cases involving nonmember defendants," -452, and stressed the "three informative citations" accompanying the statement, which mark the true contours of inherent tribal authority over nonmembers: "The first citation points to the passage in in which the Court advanced `the general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe,' with two prime exceptions. The case cited second is Washington v. Confederated Tribes of Colville Reserva- tion, a decision the Court listed as illustrative of the first exception The third case noted in conjunction with the Iowa statement is Fisher v. District Court of Sixteenth Judicial Dist. of Mont., a decision the Court cited in support of the second exception" Accordingly, in explaining and distinguishing Iowa we confirmed in Strate what we had indicated in : that as a general matter, a tribe's civil jurisdiction does not extend to the "activities of non-Indians on reservation lands," Iowa and that the only such activities that trigger civil jurisdiction are those that fit within one of `s two exceptions. After Strate, it is undeniable that a tribe's remaining inherent civil jurisdiction to adjudicate civil claims arising out of acts committed on a reservation depends in the first instance on the character of the individual over whom jurisdiction is claimed, not on the title to the soil on which he acted. The principle on which and Strate were decided (like before them) looks first to human relationships, not land records, and it should make no difference per se whether acts committed on a reservation *382 occurred on tribal land or on land owned by a nonmember individual in fee. It is the membership status of the unconsenting party, not the status of real property, that counts as the primary jurisdictional fact.[4] II Limiting tribal-court civil jurisdiction this way not only applies the animating principle behind our precedents, but fits with historical assumptions about tribal authority and serves sound policy. As for history, Justice Stevens has observed that "[i]n sharp contrast to the tribes' broad powers over their own members, tribal powers over nonmembers have always been narrowly confined." His point is exemplified by the early treaties with those who became known as the five civilized Tribes, which treaties "specifically granted the right of self-government to the tribes [but] specifically excluded jurisdiction over nonmembers." at n. 21 (citing Treaty with the Cherokees, Art. 5, (1835), Treaty with the Choctaws and Chickasaws, Art. 7, (1855), and Treaty with the Creeks and Seminoles, Art. 15, (1856)). In a similar vein, referring to 19th-century federal statutes setting the jurisdiction of the courts of those five Tribes, this Court said in In re Mayfield, that the "general object" of such measures was "to vest in the courts of the [Indian] nation jurisdiction of all controversies between Indians, or where a member of the nation is the only party to the proceeding, and to reserve to the courts *383 of the United States jurisdiction of all actions to which its own citizens are parties on either side." And, in fact, to this very day, general federal law prohibits Courts of Indian Offenses (tribunals established by regulation for tribes that have not organized their own tribal court systems) from exercising jurisdiction over unconsenting nonmembers. Such courts have "[c]ivil jurisdiction" only of those actions arising within their territory "in which the defendant is an Indian, and of all other suits between Indians and non-Indians which are brought before the court by stipulation of the parties." (a) (2000). A rule generally prohibiting tribal courts from exercising civil jurisdiction over nonmembers, without looking first to the status of the land on which individual claims arise, also makes sense from a practical standpoint, for tying tribes' authority to land status in the first instance would produce an unstable jurisdictional crazy quilt. Because land on Indian reservations constantly changes hands (from tribes to nonmembers, from nonmembers to tribal members, and so on), a jurisdictional rule under which land status was dispositive would prove extraordinarily difficult to administer and would provide little notice to nonmembers, whose susceptibility to tribal-court jurisdiction would turn on the most recent property conveyances. Cf. The ability of nonmembers to know where tribal jurisdiction begins and ends, it should be stressed, is a matter of real, practical consequence given "[t]he special nature of [Indian] tribunals," which differ from traditional American courts in a number of significant respects. To start with the most obvious one, it has been understood for more than a century that the Bill of Rights and the Fourteenth Amendment do not of their own force apply to Indian tribes. See ; F. Cohen, Handbook of Federal Indian *384 Law 664-6 (1982 ed.) (hereinafter Cohen) ("Indian tribes are not states of the union within the meaning of the Constitution, and the constitutional limitations on states do not apply to tribes"). Although the Indian Civil Rights Act of 1968 (ICRA) makes a handful of analogous safeguards enforceable in tribal courts, 25 U.S. C. 1302, "the guarantees are not identical,"[5] and there is a "definite trend by tribal courts" toward the view that they "ha[ve] leeway in interpreting" the ICRA's due process and equal protection clauses and "need not follow the U. S. Supreme Court precedents `jot-for-jot,' " Newton, Tribal Court Praxis: One Year in the Life of Twenty Indian Tribal Courts, In any event, a presumption against tribal-court civil jurisdiction squares with one of the principal policy considerations underlying namely, an overriding concern that citizens who are not tribal members be "protected from unwarranted intrusions on their personal liberty," Tribal courts also differ from other American courts (and often from one another) in their structure, in the substantive law they apply, and in the independence of their judges. Although some modern tribal courts "mirror American courts" and "are guided by written codes, rules, procedures, and guidelines," tribal law is still frequently unwritten, being based instead "on the values, mores, and norms of a tribe and expressed in its customs, traditions, and practices," and is often "handed down orally or by example from one generation to another." Melton, Indigenous Justice Systems and Tribal Society, 79 Judicature 126, 130-131 (1995). The resulting law applicable in tribal courts is a complex "mix of tribal codes and federal, state, and traditional law," National American Indian Court Judges Assn., Indian *385 Courts and the Future 43 which would be unusually difficult for an outsider to sort out. Hence the practical importance of being able to anticipate tribal jurisdiction by reference to a fact more readily knowable than the title status of a particular plot of land. One further consideration confirms the point. It is generally accepted that there is no effective review mechanism in place to police tribal courts' decisions on matters of nontribal law, since tribal-court judgments based on state or federal law can be neither removed nor appealed to state or federal courts. Cf., e. g., 28 U.S. C. 1441(a) (removal of "any civil action brought in a State court of which the district courts of the United States have original jurisdiction"); 1257(a) (Supreme Court review of "judgments or decrees rendered by the highest court of a State" where federal law implicated). The result, of course, is a risk of substantial disuniformity in the interpretation of state and federal law, a risk underscored by the fact that "[t]ribal courts are often `subordinate to the political branches of tribal governments,' " Duro, at III There is one loose end. The panel majority in the Ninth Circuit held that "the presumption against tribal court jurisdiction does not apply in this case." Since we have held otherwise, should we now remand for application of the correct law? There is room for reasonable disagreement on this point, see post, at 396 (O'Connor, J., concurring in part and concurring in judgment), but on balance I think a remand is unnecessary. The Court's analysis of opposing state and tribal interests answers the opinion of the Ninth Circuit majority; in substance, the issues subject to the Court of Appeals's principal concern have been considered here. My own focus on the presumption was, of course, addressed by the panel (albeit unsympathetically), and the only question that *386 might now be considered by the Circuit on my separate approach to the case is the applicability of the second exception. But as Judge Rymer indicated in her dissent, the uncontested fact that the Tribal Court itself authorized service of the state warrant here bars any serious contention that the execution of that warrant adversely affected the Tribes' political integrity. See — 1034. Thus, even if my alternative rationale exclusively governed the outcome, remand would be pure formality.

Justice Rehnquist

majority

Hercules, Inc. v. United States

1996-03-04

https://www.courtlistener.com/opinion/118004/hercules-inc-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/118004/

1995-030

Petitioners in this case incurred substantial costs defending, and then settling, third-party tort claims arising out of their performance of Government contracts. In this action under the Tucker Act, they sought to recover these costs from the Government on alternative theories of contractual indemnification or warranty of specifications provided by the Government. We hold that they may not do so. When the United States had armed forces stationed in Southeast Asia in the 1960's, it asked several chemical manufacturers, including petitioners Hercules Incorporated (Hercules) and Wm. T. Thompson Company (Thompson), to manufacture and sell it a specific phenoxy herbicide, code-named Agent Orange. The Department of Defense wanted to spray the defoliant in high concentrations on tree and plant life in order to both eliminate the enemy's hiding places and destroy its food supplies. From 1964 to 1968, the Government, pursuant to the Defense Production Act of 1950 (DPA), 64 Stat. 798, as amended, 50 U.S. C. App. § 2061 et seq. (1988 ed. and Supp. V), entered into a series of fixed-price production contracts with petitioners. The military prescribed the formula and detailed specifications for manufacture. The contracts also instructed the suppliers to mark the drums containing the herbicide with a 3-inch orange band with "[n]o *420 further identification as to conten[t]." Lodging 30 (available in clerk's office case file). Petitioners fully complied. In the late 1970's, Vietnam veterans and their families began filing lawsuits against nine manufacturers of Agent Orange, including petitioners. The plaintiffs alleged that the veterans' exposure to dioxin, a toxic byproduct found in Agent Orange and believed by many to be hazardous, had caused various health problems. The lawsuits were consolidated in the Eastern District of New York and a class action was certified. In re "Agent Orange" Product Liability Litigation, 506 F. Supp. 762, 787-792 (1980). District Judge Pratt awarded petitioners summary judgment on the basis of the Government contractor defense in May 1983. In re "Agent Orange" Product Liability Litigation, 565 F. Supp. 1263. Before the judgment was entered, however, the case was transferred to Chief Judge Weinstein, who withdrew Judge Pratt's opinion, ruled that the viability of the Government contractor defense could not be determined before trial, and reinstated petitioners as defendants. See In re "Agent Orange" Product Liability Litigation, 597 F. Supp. 740, 753 (1984). In May 1984, hours before the start of trial,the parties settled. The defendants agreed to create a $180 million settlement fund with each manufacturer contributing on a market-share basis. Hercules' share was $18,772,568; Thompson's was $3,096,597. Petitioners also incurred costs defending these suits exceeding $9 million combined.[1] *421 Petitioners want the United States to reimburse them for the costs of defending and settling this litigation. They attempted to recover first in District Court under tort theories of contribution and noncontractual indemnification. Having failed there,[2] they each sued the Government in the United States Claims Court, invoking jurisdiction under 28 U.S. C. § 1491, and raising various claims sounding in contract.[3] On the Government's motions, the Claims Court granted summary judgment against petitioners and dismissed both complaints. Hercules, Inc. v. United States, 25 Cl. Ct. 616 (1992); Wm. T. Thompson Co. v.United States, 26 Cl.Ct. 17 (1992). The two cases were consolidated for appeal and a divided panel of the Court of Appeals for the Federal Circuit affirmed. 24 F.3d 188 (1994). The court held that petitioners' claim of implied warranty of specifications failed because petitioners could not prove causation between the alleged breach and the damages. The court explained that, had petitioners pursued the class-action litigation to completion, the Government contractor defense would have barred the imposition of tort liability against them. The Government contractor defense, which many courts recognized before the Agent Orange settlement, but which this Court did not consider *422 until afterward, shields contractors from tort liability for products manufactured for the Government in accordance with Government specifications, if the contractor warned the United States about any hazards known to the contractor but not to the Government. Boyle v. United Technologies Corp., 487 U.S. 500, 512 (1988). Because the Court of Appeals believed petitioners could have availed themselves of this defense, the court held that, by settling, petitioners voluntarily assumed liability for which the Government was not responsible. It also rejected Thompson's claim of contractual indemnification. Thompson had argued that the Government, pursuant to § 707 of the DPA, 50 U.S. C. App. § 2157 (1988 ed.), impliedly promised to indemnify Thompson for any liabilities incurred in performing under the DPA. Not persuaded, the court held that § 707 did not create indemnification, but only provided a defense to a suit brought against the contractor by a disgruntled customer whose work order the DPA contract displaced. We granted certiorari, 514 U.S. 1049 (1995), and now affirm the judgment below but on different grounds.[4] We begin by noting the limits of federal jurisdiction. "[T]he United States, as sovereign, `is immune from suit save as it consents to be sued . . . and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.' " United States v. Testan, 424 U. S.392, 399 (1976), quoting United States v. Sherwood, 312 U.S. 584, 586 *423 (1941). Congress created the Claims Court[5] to permit "a special and limited class of cases" to proceed against the United States, Tennessee v. Sneed, 96 U.S. 69, 75 (1878), and the court "can take cognizance only of those [claims] which by the terms of some act of Congress are committed to it," Thurston v. United States, 232 U.S. 469, 476 (1914); United States v. Sherwood, supra, at 586-589. The Tucker Act confers upon the court jurisdiction to hear and determine, inter alia, claims against the United States founded upon any "express or implied" contract with the United States. 28 U.S. C. § 1491(a). We have repeatedly held that this jurisdiction extends only to contracts either express or implied in fact, and not to claims on contracts implied in law. Sutton v. United States, 256 U.S. 575, 581 (1921); Merritt v. United States, 267 U.S. 338, 341 (1925); United States v. Minnesota Mut. Investment Co., 271 U.S. 212, 217 (1926); United States v. Mitchell, 463 U.S. 206, 218 (1983). Each material term or contractual obligation, as well as the contract as a whole, is subject to this jurisdictional limitation. See, e. g., Sutton, supra, at 580-581 (refusing to recognize an implied agreement to pay the fair value of work performed because the term was not "express or implied in fact" in the Government contract for dredging services); Lopez v. A. C. & S., Inc., 858 F.2d 712, 714-715, 716 (CA Fed. 1988) (a Spearin warranty within an asbestos contract must be implied in fact). The distinction between "implied in fact" and "implied in law," and the consequent limitation, is well established in *424 our cases. An agreement implied in fact is "founded upon a meeting of minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding." Baltimore & Ohio R. Co. v. United States, 261 U.S. 592, 597 (1923). See also Russell v. United States, 182 U.S. 516, 530 (1901) ("[T]o give the Court of Claims jurisdiction the demand sued on must be founded on a convention between the parties—'a coming together of minds' "). By contrast, an agreement implied in law is a "fiction of law" where "a promise is imputed to perform a legal duty, as to repay money obtained by fraud or duress." Baltimore & Ohio R. Co. , supra, at 597. Petitioners do not contend that their contracts contain express warranty or indemnification provisions. Therefore, for them to prevail, they must establish that, based on the circumstances at the time of contracting, there was an implied agreement between the parties to provide the undertakings that petitioners allege. We consider petitioners' warranty-of-specifications and contractual-indemnification claims in turn. The seminal case recognizing a cause of action for breach of contractual warranty of specifications is United States v. Spearin, 248 U.S. 132 (1918). In that case, Spearin had contracted to build a dry dock in accordance with the Government's plans which called for the relocation of a storm sewer. After Spearin had moved the sewer, but before he had completed the dry dock, the sewer broke and caused the site to flood. The United States refused to pay for the damages and annulled the contract. Spearin filed suit to recover the balance due on his work and lost profits. This Court held that "if the contractor is bound to build according to plans and specifications prepared by [the Government], the contractor will not be responsible for the consequences of defects in the plans and specifications." Id., at 136. From this, petitioners contend the United States is responsible for *425 costs incurred in defending and settling the third-party tort claims. Neither the warranty nor Spearin extends that far. When the Government provides specifications directing how a contract is to be performed, the Government warrants that the contractor will be able to perform the contract satisfactorily if it follows the specifications. The specifications will not frustrate performance or make it impossible. It is quite logical to infer from the circumstance of one party providing specifications for performance that that party warrants the capability of performance. But this circumstance alone does not support a further inference that would extend the warranty beyond performance to third-party claims against the contractor. In this case, for example, it would be strange to conclude that the United States, understanding the herbicide's military use, actually contemplated a warranty that would extend to sums a manufacturer paid to a third party to settle claims such as are involved in the present action. It seems more likely that the Government would avoid such an obligation, because reimbursement through contract would provide a contractor with what is denied to it through tort law. See Stencel Aero Engineering Corp. v. United States, 431 U.S. 666 (1977).[6] *426 As an alternative basis for recovery, Thompson contends that the context in which the Government compelled it to manufacture Agent Orange constitutes an implied-in-fact agreement by the Government to indemnify for losses to third parties.[7] The Government required Thompson to produce under authority of the DPA and threat of civil and criminal fines, imposed detailed specifications, had superior knowledge of the hazards, and, to a measurable extent, seized Thompson's processing facilities. Under these conditions, petitioner contends, the contract must be read to include an implied agreement to protect the contractor and indemnify its losses. We cannot agree. The circumstances surrounding the contracting are only relevant to the extent that they help us deduce what the parties to the contract agreed to in fact. These conditions here do not, we think, give rise to an implied-in-fact indemnity agreement.[8] There is also reason to think that a contracting *427 officer would not agree to the open-ended indemnification alleged here. The Anti-Deficiency Act bars a federal employee or agency from entering into a contract for future payment of money in advance of, or in excess of, an existing appropriation. 31 U.S. C. § 1341.[9] Ordinarily no federal appropriation covers contractors' payments to third-party tort claimants in these circumstances, and the Comptroller General has repeatedly ruled that Government procurement agencies may not enter into the type of open-ended indemnity for third-party liability that petitioner Thompson claims to have implicitly received under the Agent Orange contracts.[10] We view the Anti-Deficiency Act, and the contracting *428 officer's presumed knowledge of its prohibition, as strong evidence that the officer would not have provided, in fact, the contractual indemnification Thompson claims. In an effort to avoid the Act's reach, Thompson argues that the Anti-Deficiency Act is not applicable to an implied-in-fact indemnity because such an indemnification is "judicially fashioned" and is "not an express contractual provision." Brief for Petitioners 41. However, "[t]he limitation upon the authority to impose contract obligations upon the United States is as applicable to contracts by implication as it is to those expressly made." Sutton, 256 U. S., at 580 (opinion of Brandeis, J.). When Thompson contracted with the United States, statutory mechanisms existed under which a Government contracting officer could provide an indemnity agreement to specified classes of contractors under specified conditions. See, e. g., 50 U.S. C. § 1431 (1988 ed., Supp. V) (permitting the President, whenever he deems it necessary to facilitate national defense, to authorize Government contracting without regard to other provisions of law regulating the making of contracts; in 1958, the President, in Executive Order No. 10789, delegated this authority to the Department of Defense, provided that the contracts were "within the limits of the amounts appropriated and the contract authorization therefor" and "[p]roper records of all actions taken under the authority" were maintained; in 1971, the President amended the Order to specify the conditions under which indemnification could be provided to defense contractors); 10 U.S. C. § 2354 (1956 statute authorizing indemnification provisions in contracts of a military department for research or development); 42 U.S. C. § 2210 (indemnity scheme, first enacted *429 in 1957, for liability arising out of a limited class of nuclear incidents, described in Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 63-67 (1978)). These statutes, set out in meticulous detail and each supported by a panoply of implementing regulations,[11] would be entirely unnecessary if an implied agreement to indemnify could arise from the circumstances of contracting. We will not interpret the DPA contracts so as to render these statutes and regulations superfluous. Cf. Astoria Federal Sav. & Loan Assn. v. Solimino, 501 U.S. 104, 112 (1991).[12] We find unpersuasive Thompson's argument that § 707 of the DPA[13] reveals Congress' intent to hold harmless manufacturers for any liabilities which flow from compliance with an order issued under the DPA. Thompson reads the provision too broadly. The statute plainly provides immunity, not indemnity. By expressly providing a defense to liability, *430 Congress does not implicitly agree that, if liability is imposed notwithstanding that defense, the Government will reimburse the unlucky defendant.[14] We think Thompson's reliance on Ryan Stevedoring Co. v. Pan-Atlantic S. S. Corp., 350 U.S. 124 (1956), is likewise misplaced; there, in an action between private parties, we held that the stevedore was liable to the shipowner for the amount the latter paid in damages to an injured employee of the former. Here Thompson claims a breach of warranty by its customer, not by its seller and supplier. Perhaps recognizing the weakness of their legal position, petitioners plead "simple fairness," Tr. of Oral Arg. 3, and ask us to "redress the unmistakable inequities," Brief for Petitioners 40. Fairness, of course, is in many respects a comparative concept, and the fact that the veterans who claimed physical injury from the use of Agent Orange could not recover against the Government, see Feres v. United States, 340 U.S. 135 (1950), considerably weakens petitioners' equitable appeal. But in any event we are constrained by our limited jurisdiction and may not entertain claims "based merely on equitable considerations." United States v. Minnesota Mut. Investment Co., 271 U. S., at 217-218. For the foregoing reasons, the judgment of the Court of Appeals is Affirmed. Justice Stevens took no part in the consideration or decision of this case.

Petitioners in this case incurred substantial costs defending, and then settling, third-party tort claims arising out of their performance of Government contracts. In this action under the Tucker Act, they sought to recover these costs from the Government on alternative theories of contractual indemnification or warranty of specifications provided by the Government. We hold that they may not do so. When the United States had armed forces stationed in Southeast Asia in the 1960's, it asked several chemical manufacturers, including petitioners Hercules Incorporated (Hercules) and Wm. T. Thompson Company (Thompson), to manufacture and sell it a specific phenoxy herbicide, code-named Agent Orange. The Department of Defense wanted to spray the defoliant in high concentrations on tree and plant life in order to both eliminate the enemy's hiding places and destroy its food supplies. From 1964 to 1968, the Government, pursuant to the Defense Production Act of 1950 (DPA), as amended, 50 U.S. C. App. 2061 et seq. ( ed. and Supp. V), entered into a series of fixed-price production contracts with petitioners. The military prescribed the formula and detailed specifications for manufacture. The contracts also instructed the suppliers to mark the drums containing the herbicide with a 3-inch orange band with "[n]o *420 further identification as to conten[t]." Lodging 30 (available in clerk's office case file). Petitioners fully complied. In the late 1970's, Vietnam veterans and their families began filing lawsuits against nine manufacturers of Agent Orange, including petitioners. The plaintiffs alleged that the veterans' exposure to dioxin, a toxic byproduct found in Agent Orange and believed by many to be hazardous, had caused various health problems. The lawsuits were consolidated in the Eastern District of New York and a class action was certified. In re "Agent Orange" Product Liability Litigation, District Judge Pratt awarded petitioners summary judgment on the basis of the Government contractor defense in May 1983. In re "Agent Orange" Product Liability Litigation, Before the judgment was entered, however, the case was transferred to Chief Judge Weinstein, who withdrew Judge Pratt's opinion, ruled that the viability of the Government contractor defense could not be determined before trial, and reinstated petitioners as defendants. See In re "Agent Orange" Product Liability Litigation, In May hours before the start of trial,the parties settled. The defendants agreed to create a $180 million settlement fund with each manufacturer contributing on a market-share basis. Hercules' share was $18,772,568; Thompson's was $3,096,. Petitioners also incurred costs defending these suits exceeding $9 million combined.[1] *421 Petitioners want the United States to reimburse them for the costs of defending and settling this litigation. They attempted to recover first in District Court under tort theories of contribution and noncontractual indemnification. Having failed there,[2] they each sued the Government in the United States Claims Court, invoking jurisdiction under 28 U.S. C. 1491, and raising various claims sounding in contract.[3] On the Government's motions, the Claims Court granted summary judgment against petitioners and dismissed both complaints. Hercules, ; Wm. T. Thompson v.United States, 26 Cl.Ct. 17 The two cases were consolidated for appeal and a divided panel of the Court of Appeals for the Federal Circuit affirmed. The court held that petitioners' claim of implied warranty of specifications failed because petitioners could not prove causation between the alleged breach and the damages. The court explained that, had petitioners pursued the class-action litigation to completion, the Government contractor defense would have barred the imposition of tort liability against them. The Government contractor defense, which many courts recognized before the Agent Orange settlement, but which this Court did not consider *422 until afterward, shields contractors from tort liability for products manufactured for the Government in accordance with Government specifications, if the contractor warned the United States about any hazards known to the contractor but not to the Government. Because the Court of Appeals believed petitioners could have availed themselves of this defense, the court held that, by settling, petitioners voluntarily assumed liability for which the Government was not responsible. It also rejected Thompson's claim of contractual indemnification. Thompson had argued that the Government, pursuant to 707 of the DPA, 50 U.S. C. App. 2157 ( ed.), impliedly promised to indemnify Thompson for any liabilities incurred in performing under the DPA. Not persuaded, the court held that 707 did not create indemnification, but only provided a defense to a suit brought against the contractor by a disgruntled customer whose work order the DPA contract displaced. We granted certiorari, and now affirm the judgment below but on different grounds.[4] We begin by noting the limits of federal jurisdiction. "[T]he United States, as sovereign, `is immune from suit save as it consents to be sued and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit.' " United States v. Testan, 424 U. S.392, 399 (1976), quoting United Congress created the Claims Court[5] to permit "a special and limited class of cases" to proceed against the United States, and the court "can take cognizance only of those [claims] which by the terms of some act of Congress are committed to it," ; United The Tucker Act confers upon the court jurisdiction to hear and determine, inter alia, claims against the United States founded upon any "express or implied" contract with the United States. 28 U.S. C. 1491(a). We have repeatedly held that this jurisdiction extends only to contracts either express or implied in fact, and not to claims on contracts implied in law. 256 U.S. 5, ; ; United ; United Each material term or contractual obligation, as well as the contract as a whole, is subject to this jurisdictional limitation. See, e. g., at 580- ; The distinction between "implied in fact" and "implied in law," and the consequent limitation, is well established in *424 our cases. An agreement implied in fact is "founded upon a meeting of minds, which, although not embodied in an express contract, is inferred, as a fact, from conduct of the parties showing, in the light of the surrounding circumstances, their tacit understanding." Baltimore & Ohio R. See also By contrast, an agreement implied in law is a "fiction of law" where "a promise is imputed to perform a legal duty, as to repay money obtained by fraud or duress." Baltimore & Ohio R. at Petitioners do not contend that their contracts contain express warranty or indemnification provisions. Therefore, for them to prevail, they must establish that, based on the circumstances at the time of contracting, there was an implied agreement between the parties to provide the undertakings that petitioners allege. We consider petitioners' warranty-of-specifications and contractual-indemnification claims in turn. The seminal case recognizing a cause of action for breach of contractual warranty of specifications is United In that case, Spearin had contracted to build a dry dock in accordance with the Government's plans which called for the relocation of a storm sewer. After Spearin had moved the sewer, but before he had completed the dry dock, the sewer broke and caused the site to flood. The United States refused to pay for the damages and annulled the contract. Spearin filed suit to recover the balance due on his work and lost profits. This Court held that "if the contractor is bound to build according to plans and specifications prepared by [the Government], the contractor will not be responsible for the consequences of defects in the plans and specifications." From this, petitioners contend the United States is responsible for *425 costs incurred in defending and settling the third-party tort claims. Neither the warranty nor Spearin extends that far. When the Government provides specifications directing how a contract is to be performed, the Government warrants that the contractor will be able to perform the contract satisfactorily if it follows the specifications. The specifications will not frustrate performance or make it impossible. It is quite logical to infer from the circumstance of one party providing specifications for performance that that party warrants the capability of performance. But this circumstance alone does not support a further inference that would extend the warranty beyond performance to third-party claims against the contractor. In this case, for example, it would be strange to conclude that the United States, understanding the herbicide's military use, actually contemplated a warranty that would extend to sums a manufacturer paid to a third party to settle claims such as are involved in the present action. It seems more likely that the Government would avoid such an obligation, because reimbursement through contract would provide a contractor with what is denied to it through tort law. See Stencel Aero Engineering[6] *426 As an alternative basis for recovery, Thompson contends that the context in which the Government compelled it to manufacture Agent Orange constitutes an implied-in-fact agreement by the Government to indemnify for losses to third parties.[7] The Government required Thompson to produce under authority of the DPA and threat of civil and criminal fines, imposed detailed specifications, had superior knowledge of the hazards, and, to a measurable extent, seized Thompson's processing facilities. Under these conditions, petitioner contends, the contract must be read to include an implied agreement to protect the contractor and indemnify its losses. We cannot agree. The circumstances surrounding the contracting are only relevant to the extent that they help us deduce what the parties to the contract agreed to in fact. These conditions here do not, we think, give rise to an implied-in-fact indemnity agreement.[8] There is also reason to think that a contracting *427 officer would not agree to the open-ended indemnification alleged here. The Anti-Deficiency Act bars a federal employee or agency from entering into a contract for future payment of money in advance of, or in excess of, an existing appropriation. 31 U.S. C. 1.[9] Ordinarily no federal appropriation covers contractors' payments to third-party tort claimants in these circumstances, and the Comptroller General has repeatedly ruled that Government procurement agencies may not enter into the type of open-ended indemnity for third-party liability that petitioner Thompson claims to have implicitly received under the Agent Orange contracts.[10] We view the Anti-Deficiency Act, and the contracting *428 officer's presumed knowledge of its prohibition, as strong evidence that the officer would not have provided, in fact, the contractual indemnification Thompson claims. In an effort to avoid the Act's reach, Thompson argues that the Anti-Deficiency Act is not applicable to an implied-in-fact indemnity because such an indemnification is "judicially fashioned" and is "not an express contractual provision." Brief for Petitioners 41. However, "[t]he limitation upon the authority to impose contract obligations upon the United States is as applicable to contracts by implication as it is to those expressly made." When Thompson contracted with the United States, statutory mechanisms existed under which a Government contracting officer could provide an indemnity agreement to specified classes of contractors under specified conditions. See, e. g., 50 U.S. C. 1431 ( ed., Supp. V) (permitting the President, whenever he deems it necessary to facilitate national defense, to authorize Government contracting without regard to other provisions of law regulating the making of contracts; in 1958, the President, in Executive Order No. 10789, delegated this authority to the Department of Defense, provided that the contracts were "within the limits of the amounts appropriated and the contract authorization therefor" and "[p]roper records of all actions taken under the authority" were maintained; in 1971, the President amended the Order to specify the conditions under which indemnification could be provided to defense contractors); 10 U.S. C. 2354 (1956 statute authorizing indemnification provisions in contracts of a military department for research or development); 42 U.S. C. 2210 ). These statutes, set out in meticulous detail and each supported by a panoply of implementing regulations,[11] would be entirely unnecessary if an implied agreement to indemnify could arise from the circumstances of contracting. We will not interpret the DPA contracts so as to render these statutes and regulations superfluous. Cf. Astoria Federal Sav. & Loan[12] We find unpersuasive Thompson's argument that 707 of the DPA[13] reveals Congress' intent to hold harmless manufacturers for any liabilities which flow from compliance with an order issued under the DPA. Thompson reads the provision too broadly. The statute plainly provides immunity, not indemnity. By expressly providing a defense to liability, *430 Congress does not implicitly agree that, if liability is imposed notwithstanding that defense, the Government will reimburse the unlucky defendant.[14] We think Thompson's reliance on Ryan Stevedoring is likewise misplaced; there, in an action between private parties, we held that the stevedore was liable to the shipowner for the amount the latter paid in damages to an injured employee of the former. Here Thompson claims a breach of warranty by its customer, not by its seller and supplier. Perhaps recognizing the weakness of their legal position, petitioners plead "simple fairness," Tr. of Oral Arg. 3, and ask us to "redress the unmistakable inequities," Brief for Petitioners 40. Fairness, of course, is in many respects a comparative concept, and the fact that the veterans who claimed physical injury from the use of Agent Orange could not recover against the Government, see considerably weakens petitioners' equitable appeal. But in any event we are constrained by our limited jurisdiction and may not entertain claims "based merely on equitable considerations." United 271 U. S., at -. For the foregoing reasons, the judgment of the Court of Appeals is Affirmed. Justice Stevens took no part in the consideration or decision of this case.

Justice Breyer

dissenting

Hercules, Inc. v. United States

1996-03-04

https://www.courtlistener.com/opinion/118004/hercules-inc-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/118004/

1995-030

The petitioners, two chemical companies, have brought this breach-of-contract action seeking reimbursement from the Government for their contribution to the settlement of lawsuits brought by Vietnam veterans exposed to their product Agent Orange. The companies argue that their contracts with the Government to produce Agent Orange contain certain promises or warranties that, in effect, hold them harmless. To win this case, as in the most elementary breach-of-contract case, the companies must show that the Government in fact made the warranties or promises, that the Government breached them, and that the Agent Orange settlement contribution was a consequent foreseeable harm. See Restatement (Second) of Contracts §§ 346, 347, 351 (1979); 5 A. Corbin, Contracts §§ 997, 1001, 1002 (1964). The companies concede that the promises, or warranties, are not written explicitly in their contracts; but, the companies intend to prove certain background facts and legal circumstances, which, they say, will show that these promises, or warranties, are an implicit part of the bargain that the parties struck. See 3 id., §§ 538, 551 (common and trade usage, course of dealings, and existing statutes and rules of law are always probative as to the meaning of the parties). The background facts alleged include the following: x In the 1960's the Government, by exercising special statutory authority, required the companies to enter into the Agent Orange production contracts over the explicit objection of at least one of the companies. See Defense Production Act of 1950 (DPA), 50 U.S. C. App. § 2061 et seq. (1988 ed. and Supp. V); App. 8-9, 23-24. x The Government required the companies to produce Agent Orange according to precise, detailed production specifications. Ibid. x At that time the Government knew but did not reveal that Agent Orange was defective, or unsafe, to the point *432 where its use might lead to plausible tort claims advanced by those who used it. Id., at 10-11, 25. x The Government specified that the companies could not label Agent Orange in ways that might have promoted its safe use (with, say, dilution instructions), while, at the same time, the Government permitted its soldiers to use Agent Orange in unreasonably risky ways (such as using empty containers for showers or barbecues). Id., at 8-10. The background (1960's) legal circumstances include the following: x United States v. Spearin, 248 U.S. 132 (1918), in which this Court approved the common judicial practice of reading Government contracts that provide detailed "plans and specifications," as containing an implied warranty that "the contractor will not be responsible for the consequences of defects in the plans and specifications." Id., at 136. x Lower court decisions reading Government contracts as containing an implied warranty that performance costs will not increase due to the Government's superior knowledge of undisclosed "vital information" that causes the cost increase. See Helene Curtis Industries, Inc. v. United States, 312 F.2d 774, 777-778, and n. 1 (Ct. Cl. 1963) (collecting cases). x The broad language of the statute that authorized the President to enter into defense procurement contracts— language broad enough to authorize Government promises to indemnify. 50 U.S. C. § 1431 (1988 ed., Supp. V); Exec. Order 10789, 3 CFR 426 (1954-1958 Comp.). See also Exec. Order 11610, 3 CFR 594 (1971-1975 Comp.) (taking view that the statute grants authority to promise indemnification). x The language of the DPA, which, while permitting the Government to place compulsory defense orders, also says that the compelled firms shall not "be held liable for damages. . . for any act or failure to act resulting directly or indirectly from compliance with" such an "order." 50 U.S. C. App. § 2157 (1988 ed.). *433 These background facts and circumstances, say the companies, show that the Government knew far better than they that its Agent Orange contract specifications would force them to produce a risky product for risky use. They add that all parties knew of legal doctrines that made the Government responsible in analogous circumstances for analogous risks. They argue that the Government would not have wanted to force them (under the DPA) to enter into a contract subjecting them (through its specifications) to serious risks of damage, in respect to which (because of the Government's superior knowledge) they could not bargain for compensation. They conclude that the Government, in the contracts, took responsibility for those risks by implicitly promising to assume responsibility for the consequences of specification defects, including indemnification for the settlement of defect-related tort suits. The Federal Circuit affirmed a grant of summary judgment against the companies. But, in doing so, it did not decide against the companies in respect to their claimed promises. Instead the Federal Circuit assumed (reluctantly and for argument's sake) that the companies would be able to prove the existence of the promises, but it went on to hold against them regardless. Even assuming the promises, the Circuit wrote, the companies will not be able to prove causation between promises and damages. The Circuit believed that, had the companies litigated the Agent Orange tort suits instead of settling them, they would have asserted a "government contractor defense," see Boyle v. United Technologies Corp., 487 U.S. 500 (1988), and thereby won the lawsuits. It concluded that, since the companies could readily have won the suits, the settlement amounts to a "voluntary payment" that cuts any causal link between a broken promise, or warranty, and resulting harm. The companies, in their petition for certiorari and initial brief on the merits, primarily asked us to review, and to reverse, *434 this "no causation" holding. The Court, in today's opinion, does not discuss that holding. Instead it holds that the companies will not be able to prove the existence of the implicit promises. In my view, however, the record before us now does not permit this latter holding. Rather, this Court should reverse the Court of Appeals' "no causation" holding and then remand this case for further proceedings. I need mention only one fatal flaw in the Court of Appeals' "no causation" holding, that of hindsight. The Court of Appeals, in essence, found the companies' Agent Orange settlement so obviously unnecessary, so abnormal, so far removed from ordinary litigation behavior, that it could not have been "foreseeable," see Restatement (Second) of Contracts § 351; 5 Corbin, Contracts § 1002, or (if I recast the same point in the Court's tort-like "causation" language) that it cut the causal link between promise breach and harm. But, viewed without the benefit of legal hindsight, the settlement was neither unforeseeable nor was it an intervening "cause" of the loss. In 1984, when the companies settled, the settlement was not notably different in terms of reasonableness or motivation from other settlements that terminate major litigation, for at that time the law that might have provided the companies with a defense was far less clear than it is today. I concede that even then some Circuits already had found in the law a "government contractor defense" that, in effect, immunized defense contractors from most suits by servicemen claiming injury from defective products. See McKay v. Rockwell International Corp., 704 F.2d 444, 448-451 (CA9 1983), cert. denied, 464 U.S. 1043 (1984); Brown v. Caterpillar Tractor Co., 696 F.2d 246, 249-254 (CA3 1982); Tillett v. J. I. Case Co., 756 F.2d 591, 599-600 (CA7 1985). But, most of these Circuits had held that the existence of such a defense was a matter of state law, which might differ among the States. See Brown, supra; Tillett, supra; Hansen v. JohnsManville Products Corp., 734 F.2d 1036, 1044-1045 (CA5 *435 1984), cert. denied, 470 U.S. 1051 (1985). The Second Circuit, the home of the Agent Orange litigation, had not decided the issue. And, the two Agent Orange Second Circuit trial judges who (due to certain here irrelevant procedural considerations) both considered the companies' "government contractor" defense decided the issue in opposite ways. Compare In re "Agent Orange" Product Liability Litigation, 565 F. Supp. 1263, 1274-1275 (EDNY 1983), with In re "Agent Orange" Product Liability Litigation, 597 F. Supp. 740, 847-850 (EDNY 1984), aff'd, 818 F.2d 145 (CA2 1987), cert. denied sub nom. Fraticelli v. Dow Chemical Co., 484 U.S. 1004 (1988). This Court did not authoritatively uphold the "government contractor" defense until 1988, four years after the settlement here at issue. Boyle, supra. And, it did so on a ground different from that upon which the Circuit Courts had previously relied. Compare McKay, supra, at 448-451; Tillett, supra, at 596-597 (finding the "government contractor defense" implicit in Feres v. United States, 340 U.S. 135 (1950)), with Boyle, supra, at 509-511 (explicitly rejecting Feres as the basis for a "government contractor defense"). In light of this contemporaneous legal uncertainty, the settlement, viewed from the companies' perspective and without benefit of hindsight, seems a reasonable litigation strategy, through which the companies avoided added litigation costs and the threat of significant additional liability while helping to provide the veterans with at least some compensation. See In re "Agent Orange," 597 F. Supp., at 749 (explaining why Agent Orange District Court approved the settlement). Nothing in the record here suggests the contrary. And, if reasonable at the time, the settlement must have been a "foreseeable" potential consequence of litigation and therefore within the scope of what the companies claim were implicit promises or warranties protecting them against the harms of litigation. See also 24 F.3d 188, 205-208 (CA Fed. 1994) (Plager, C. J., dissenting). For that reason, this Court *436 simply should set aside the Court of Appeals' determination on the point. The Court instead decides this case on an alternative basis, namely, that the companies cannot prove the existence of the implicit promises or warranties that they claim. But the existence of a contractual promise implied in fact is very much a creature of particular circumstance—the particular terms, the negotiating circumstances, and the background understandings of law or industry practice. See 3 Corbin, supra, §§ 562, 566-570. Unlike the majority, which compartmentalizes the companies' claims into several separate doctrinal categories (a "Spearin " claim, an implied indemnification claim)—each rejected separately for doctrine-specific reasons—I believe the companies' submissions, fairly read, also set forth a much more general fact-based claim. In essence, the companies say that the parties, when specifying the details of this compulsory defense order, implicitly agreed to allocate to the Government certain risks of defective-government-specification-caused harm—namely, those risks for which each company, because of its inferior knowledge, could not seek compensation in the contract price. And, the companies allege background facts that, if true and complete (as we must assume at this stage of the proceedings), make that implication plausible. The legal considerations to which the majority points do not answer the companies' basic implied-in-fact contentions. To do so, the majority would have to argue that the five sets of legal circumstances to which it points, taken separately or together, show that no Government contracting officer would have agreed to a promise or warranty (of the sort claimed); hence, one cannot possibly imply the existence of such a promise "in fact." See 3 Corbin, supra, § 561. The majority cannot argue that, because those five sets of circumstances suggest the contrary. First, the majority implies that a contracting officer, in all likelihood, would not have agreed to an implicit promise of *437 indemnity, for doing so would amount to a bypass of, and "render . . . superfluous," the statutes and "panoply of implementing regulations" that set forth specific procedures that contractors must follow to obtain a promise of indemnity. Ante, at 429. My problem with this argument lies in the fact that, in 1964, the relevant statute, Executive Order, and regulations read very differently. At that time, their language was nonspecific or ambiguous on the procedures required for indemnification. The statute has always been phrased in general language, making no explicit reference to indemnification. See 50 U.S. C. § 1431 (1988 ed., Supp. V); 50 U.S. C. § 1431 (1964 ed.). The portion of the Executive Order that today treats indemnification as special, and sets out procedures for indemnification, did not exist in 1964, and the relevant regulations were also either silent or much more ambiguous than they are today. Compare Exec. Order 11610, 3 CFR 594 (1971-1975 Comp.) (indemnification), with Exec. Order 10789, 3 CFR 426 (1954-1958 Comp.) (no specific reference to indemnification); compare 32 CFR § 17-301 et seq. (1975) (implementing today's indemnification procedures) with 32 CFR § 17-301 et seq. (1964) (no reference to indemnification procedures) and 32 CFR § 17.204-4 (1960) ("Informal commitments may be formalized under certain circumstances to permit payment to persons who have taken action without formal contract [e. g., where a person has furnished property or services to the military in good-faith reliance on the apparent authority of a person giving an oral instruction]. Formalization of commitments under such circumstances normally will facilitate the national defense by assuring such persons that they will be treated fairly and paid expeditiously"); 32 CFR § 17.206(i) (1964) (indemnification contracts must subject Government's obligation to availability of appropriated funds). Second, the majority points to Comptroller General opinions that say that an "open-ended" agreement to indemnify would violate the Anti-Deficiency Act, 31 U.S. C. § 1341 (1988 *438 ed.). Ante, at 427, and n. 10 (citing In re Assumption by Government of Contractor Liability to Third Persons— Reconsideration, 62 Comp. Gen. 361 (1983)). The problem with this argument is that other Comptroller General opinions say that an agreement to indemnify that is not openended, but is capped at an amount that a private insurer might have provided, is not improper. See Reimbursement of Costs in Connection with Liabilities to Third Parties for Employees' Negligence, 22 Comp. Gen. 892 (1943). A capped agreement, which, if reflected in the contract price, makes the Government a kind of self-insurer, is in effect within the appropriation (because the expenditure of assuming the risk of liability will roughly equal the cost of premiums that the Government saves by self-insuring), and may well prove sufficient for the plaintiffs' purposes. After all, on plaintiffs' factual allegations, a contractor who was as aware of the plaintiffs' alleged risks as was the Government would have sensed trouble, wanted insurance, and likely have obtained a premium payment sufficient to buy it. The companies need argue only for a capped implicit warranty that would treat the unknowing contractor similarly. See also In re Government Indemnification of Public Utilities Against Loss Arising Out of Sale of Power to Government, 59 Comp. Gen. 705 (1980) (indemnification in contracts with a "sole source" of a good or service lawful under AntiDeficiency Act). Whether an agreement to spend money beyond that which was appropriated is in writing or not is irrelevant to the Anti-Deficiency Act. Third, the majority distinguishes United States v. Spearin, 248 U.S. 132 (1918), on the ground that the implied warranty that Justice Brandeis there discussed protects a contractor from "specifications" that, in the majority's words, will "frustrate performance or make it impossible," but does not "extend . . . beyond performance to third-party claims against the contractor." Ante, at 425. Spearin itself does not make this distinction. Nor have subsequent cases. See *439 Michigan Wisconsin Pipeline Co. v. Williams-McWilliams Co., 551 F.2d 945 (CA5 1977) (allowing recovery against the Government of damages paid by a Government contractor to a third party to which the contractor caused damage by following Government specifications). See also 24 F.3d, at 197 (Spearin holds contractor harmless if the product proves defective). If the Government must pay, say, for the contractor's own machinery destroyed by a (defectivespecification-caused) explosion when that destruction frustrates performance, see Ordnance Research, Inc. v. United States, 609 F.2d 462, 479 (Ct. Cl. 1979) (treating explosions causing increased costs as a breach of the warranty of specifications), why should the Government not also have to pay when the explosion takes place just after performance is complete? And, why should it not have to reimburse the contractor's payment for identical damage caused his nextdoor neighbor in the same explosion? In any event, whether or not there are good answers to these questions, they are unlikely to answer plaintiffs' further argument, namely that, even if Spearin does not compel a decision in their favor, it offers indirect support, as background, for implying a promise that would provide (in the particular circumstances) Spearin-like protection. Fourth, the majority says that the DPA's "hold harmless" provision ("No person shall be held liable for damages . . . for any act or failure to act resulting directly or indirectly from compliance with [an] order") does not provide for indemnification. Ante, at 429. The petitioners, however, do not claim the contrary. They state explicitly that they "do not attempt to interpret the DPA's hold harmless language as an affirmative indemnity." Reply Brief for Petitioners 2. They add that "an indemnity should be implied from all the circumstances of this case, including the circumstance that petitioners and the Government contracted against the backdrop of the sweeping hold harmless language contained in the DPA." Ibid. They argue simply that the DPA's stated *440 objective—to relieve them of involuntarily created liability— would have led contracting officers in the 1960's (given the parties' uncertainty about future statutory interpretation) to have believed that a contractual "hold harmless" warranty was reasonable in the circumstances, not the contrary. See 3 Corbin, Contracts § 551 (existing statutes and rules of law are always evidence of the meaning of the parties). The relevant point is not whether Congress intended to indemnify, but the likely effect of the DPA's language (before judicial interpretation limited it to an immunity provision) on what risks contracting officers at the time might have thought the Government was assuming in a forced production contract under the Act. Fifth, both the Federal Circuit, 24 F.3d, at 198, n. 8, and the majority, ante, at 425, imply that a 1960's contracting officer would not have accepted an indemnification provision because of Stencel Aero Engineering Corp. v. United States, 431 U.S. 666 (1977). That case held (in light of the Feres doctrine providing the Government with immunity from armed services personnel tort suits) that Government contractors, whom armed services personnel had sued in tort, could not, in turn, sue the Government for indemnification. Otherwise a soldier, unable (given Feres ) to sue the Government for injury caused, say, by a defective rifle, would sue the rifle manufacturer instead, and the rifle manufacturer would then sue the Government for indemnity, thereby, in a sense, circumventing the immunity that Feres promised the Government. One problem with this argument is that Stencel postdates the formation of the contracts here at issue by about a decade. More importantly Stencel does not involve contractual promises to indemnify a contractor. Rather it concerns an indemnification provided by state tort law. Stencel, supra, at 667-668, nn. 2, 3. And, it nowhere says, or directly implies, that the law prohibits the Government from agreeing, explicitly or implicitly, to indemnify a contractor. Indeed, *441 this Court has explicitly written that it "fail[s] to see how the Stencel holding . . .supports the conclusion that if the Tort Claims Act bars a tort remedy, neither is there a contractual remedy. The absence of Government tort liability has not been thought to bar contractual remedies on implied-in-fact contracts, even in those cases also having elements of a tort." Hatzlachh Supply Co. v. United States, 444 U.S. 460, 465 (1980) (per curiam). I agree with the majority insofar as it warns against a court's too easily reading an implicit promise to indemnify a contractor's armedservices-related tort liability; but, then, its words would represent simply a wise caution and not an absolute prohibition. In sum, the companies argue factual circumstances—compelled production, superior knowledge, detailed specifications, and significant defect—which, if true, suggest that a government, dealing in good faith with its contractors, would have agreed to the "implied" promise, particularly in light of legal authorities, known at the time, that offered somewhat similar guarantees to contractors in somewhat similar circumstances. The validity of their claim is likely to turn on the strength of the companies' factual case, as supported by evidence, and upon the details of Government contracting practices in the 1960's—matters not now before us and with which the lower courts are more familiar than are we. The Court today unnecessarily restricts Spearin warranties, and, lacking particular facts at this stage of the proceeding, it relies on statutory circumstances that are common to many Government contracts. I fear that the practical effect of disposing of the companies' claim at this stage of the proceeding will be to make it more difficult, in other cases even if not here, for courts to interpret Government contracts with an eye toward achieving the fair allocation of risks that the parties likely intended. For these reasons, I would remand this case for further proceedings.

The petitioners, two chemical companies, have brought this breach-of-contract action seeking reimbursement from the Government for their contribution to the settlement of lawsuits brought by Vietnam veterans exposed to their product Agent Orange. The companies argue that their contracts with the Government to produce Agent Orange contain certain promises or warranties that, in effect, hold them harmless. To win this case, as in the most elementary breach-of-contract case, the companies must show that the Government in fact made the warranties or promises, that the Government breached them, and that the Agent Orange settlement contribution was a consequent foreseeable harm. See Restatement (Second) of Contracts 346, 347, 351 ; 5 A. Contracts 997, 1001, 1002 (1964). The companies concede that the promises, or warranties, are not written explicitly in their contracts; but, the companies intend to prove certain background facts and legal circumstances, which, they say, will show that these promises, or warranties, are an implicit part of the bargain that the parties struck. See 3 538, 551 (common and trade usage, course of dealings, and existing statutes and rules of law are always probative as to the meaning of the parties). The background facts alleged include the following: x In the 1960's the Government, by exercising special statutory authority, required the companies to enter into the Agent Orange production contracts over the explicit objection of at least one of the companies. See Defense Production Act of 1950 (DPA), 50 U.S. C. App. 2061 et seq. (1988 ed. and Supp. V); App. 8-9, 23-24. x The Government required the companies to produce Agent Orange according to precise, detailed production specifications. x At that time the Government knew but did not reveal that Agent Orange was defective, or unsafe, to the point *432 where its use might lead to plausible tort claims advanced by those who used it. x The Government specified that the companies could not label Agent Orange in ways that might have promoted its safe use (with, say, dilution instructions), while, at the same time, the Government permitted its soldiers to use Agent Orange in unreasonably risky ways (such as using empty containers for showers or barbecues). The background (1960's) legal circumstances include the following: x United in which this Court approved the common judicial practice of reading Government contracts that provide detailed "plans and specifications," as containing an implied warranty that "the contractor will not be responsible for the consequences of defects in the plans and specifications." x Lower court decisions reading Government contracts as containing an implied warranty that performance costs will not increase due to the Government's superior knowledge of undisclosed "vital information" that causes the cost increase. See Helene Curtis Industries, x The broad language of the statute that authorized the President to enter into defense procurement contracts— language broad enough to authorize Government promises to indemnify. 50 U.S. C. 1431 (1988 ed., Supp. V); Exec. Order 10789, 3 CFR 426 (1954-1958 Comp.). See Exec. Order 11610, 3 CFR 594 (1971-1975 Comp.) (taking view that the statute grants authority to promise indemnification). x The language of the DPA, which, while permitting the Government to place compulsory defense orders, says that the compelled firms shall not "be held liable for damages. for any act or failure to act resulting directly or indirectly from compliance with" such an "order." 50 U.S. C. App. 2157 (1988 ed.). *433 These background facts and circumstances, say the companies, show that the Government knew far better than they that its Agent Orange contract specifications would force them to produce a risky product for risky use. They add that all parties knew of legal doctrines that made the Government responsible in analogous circumstances for analogous risks. They argue that the Government would not have wanted to force them (under the DPA) to enter into a contract subjecting them (through its specifications) to serious risks of damage, in respect to which (because of the Government's superior knowledge) they could not bargain for compensation. They conclude that the Government, in the contracts, took responsibility for those risks by implicitly promising to assume responsibility for the consequences of specification defects, including indemnification for the settlement of defect-related tort suits. The Federal affirmed a grant of summary judgment against the companies. But, in doing so, it did not decide against the companies in respect to their claimed promises. Instead the Federal assumed (reluctantly and for argument's sake) that the companies would be able to prove the existence of the promises, but it went on to hold against them regardless. Even assuming the promises, the wrote, the companies will not be able to prove causation between promises and damages. The believed that, had the companies litigated the Agent Orange tort suits instead of settling them, they would have asserted a "government contractor defense," see and thereby won the lawsuits. It concluded that, since the companies could readily have won the suits, the settlement amounts to a "voluntary payment" that cuts any causal link between a broken promise, or warranty, and resulting harm. The companies, in their petition for certiorari and initial brief on the merits, primarily asked us to review, and to reverse, *434 this "no causation" holding. The Court, in today's opinion, does not discuss that holding. Instead it holds that the companies will not be able to prove the existence of the implicit promises. In my view, however, the record before us now does not permit this latter holding. Rather, this Court should reverse the Court of Appeals' "no causation" holding and then remand this case for further proceedings. I need mention only one fatal flaw in the Court of Appeals' "no causation" holding, that of hindsight. The Court of Appeals, in essence, found the companies' Agent Orange settlement so obviously unnecessary, so abnormal, so far removed from ordinary litigation behavior, that it could not have been "foreseeable," see Restatement (Second) of Contracts 351; 5 Contracts 1002, or (if I recast the same point in the Court's tort-like "causation" language) that it cut the causal link between promise breach and harm. But, viewed without the benefit of legal hindsight, the settlement was neither unforeseeable nor was it an intervening "cause" of the loss. In when the companies settled, the settlement was not notably different in terms of reasonableness or motivation from other settlements that terminate major litigation, for at that time the law that might have provided the companies with a defense was far less clear than it is today. I concede that even then some s already had found in the law a "government contractor defense" that, in effect, immunized defense contractors from most suits by servicemen claiming injury from defective products. See cert. denied, ; ; But, most of these s had held that the existence of such a defense was a matter of state law, which might differ among the States. See cert. denied, The Second the home of the Agent Orange litigation, had not decided the issue. And, the two Agent Orange Second trial judges who (due to certain here irrelevant procedural considerations) both considered the companies' "government contractor" defense decided the issue in opposite ways. Compare In re "Agent Orange" Product Liability Litigation, with In re "Agent Orange" Product Liability Litigation, aff'd, cert. denied sub nom. This Court did not authoritatively uphold the "government contractor" defense until 1988, four years after the settlement here at issue. And, it did so on a ground different from that upon which the Courts had previously relied. Compare at ; ), with In light of this contemporaneous legal uncertainty, the settlement, viewed from the companies' perspective and without benefit of hindsight, seems a reasonable litigation strategy, through which the companies avoided added litigation costs and the threat of significant additional liability while helping to provide the veterans with at least some compensation. See In re "Agent Orange," Nothing in the record here suggests the contrary. And, if reasonable at the time, the settlement must have been a "foreseeable" potential consequence of litigation and therefore within the scope of what the companies claim were implicit promises or warranties protecting them against the harms of litigation. See For that reason, this Court *436 simply should set aside the Court of Appeals' determination on the point. The Court instead decides this case on an alternative basis, namely, that the companies cannot prove the existence of the implicit promises or warranties that they claim. But the existence of a contractual promise implied in fact is very much a creature of particular circumstance—the particular terms, the negotiating circumstances, and the background understandings of law or industry practice. See 3 562, 566-570. Unlike the majority, which compartmentalizes the companies' claims into several separate doctrinal categories (a "Spearin " claim, an implied indemnification claim)—each rejected separately for doctrine-specific reasons—I believe the companies' submissions, fairly read, set forth a much more general fact-based claim. In essence, the companies say that the parties, when specifying the details of this compulsory defense order, implicitly agreed to allocate to the Government certain risks of defective-government-specification-caused harm—namely, those risks for which each company, because of its inferior knowledge, could not seek compensation in the contract price. And, the companies allege background facts that, if true and complete (as we must assume at this stage of the proceedings), make that implication plausible. The legal considerations to which the majority points do not answer the companies' basic implied-in-fact contentions. To do so, the majority would have to argue that the five sets of legal circumstances to which it points, taken separately or together, show that no Government contracting officer would have agreed to a promise or warranty (of the sort claimed); hence, one cannot possibly imply the existence of such a promise "in fact." See 3 561. The majority cannot argue that, because those five sets of circumstances suggest the contrary. First, the majority implies that a contracting officer, in all likelihood, would not have agreed to an implicit promise of *437 indemnity, for doing so would amount to a bypass of, and "render superfluous," the statutes and "panoply of implementing regulations" that set forth specific procedures that contractors must follow to obtain a promise of indemnity. Ante, at 429. My problem with this argument lies in the fact that, in 1964, the relevant statute, Executive Order, and regulations read very differently. At that time, their language was nonspecific or ambiguous on the procedures required for indemnification. The statute has always been phrased in general language, making no explicit reference to indemnification. See 50 U.S. C. 1431 (1988 ed., Supp. V); 50 U.S. C. 1431 (1964 ed.). The portion of the Executive Order that today treats indemnification as special, and sets out procedures for indemnification, did not exist in 1964, and the relevant regulations were either silent or much more ambiguous than they are today. Compare Exec. Order 11610, 3 CFR 594 (1971-1975 Comp.) (indemnification), with Exec. Order 10789, 3 CFR 426 (1954-1958 Comp.) (no specific reference to indemnification); compare 32 CFR 17-301 et seq. (1975) with 32 CFR 17-301 et seq. (1964) and 32 CFR 17.204-4 (1960) ("Informal commitments may be formalized under certain circumstances to permit payment to persons who have taken action without formal contract [e. g., where a person has furnished property or services to the military in good-faith reliance on the apparent authority of a person giving an oral instruction]. Formalization of commitments under such circumstances normally will facilitate the national defense by assuring such persons that they will be treated fairly and paid expeditiously"); 32 CFR 17.206(i) (1964) Second, the majority points to Comptroller General opinions that say that an "open-ended" agreement to indemnify would violate the Anti-Deficiency Act, 31 U.S. C. 1341 (1988 *438 ed.). Ante, at 427, 0 ). The problem with this argument is that other Comptroller General opinions say that an agreement to indemnify that is not openended, but is capped at an amount that a private insurer might have provided, is not improper. See Reimbursement of Costs in Connection with Liabilities to Third Parties for Employees' Negligence, A capped agreement, which, if reflected in the contract price, makes the Government a kind of self-insurer, is in effect within the appropriation (because the expenditure of assuming the risk of liability will roughly equal the cost of premiums that the Government saves by self-insuring), and may well prove sufficient for the plaintiffs' purposes. After all, on plaintiffs' factual allegations, a contractor who was as aware of the plaintiffs' alleged risks as was the Government would have sensed trouble, wanted insurance, and likely have obtained a premium payment sufficient to buy it. The companies need argue only for a capped implicit warranty that would treat the unknowing contractor similarly. See In re Government Indemnification of Public Utilities Against Loss Arising Out of Sale of Power to Government, Whether an agreement to spend money beyond that which was appropriated is in writing or not is irrelevant to the Anti-Deficiency Act. Third, the majority distinguishes United on the ground that the implied warranty that Justice Brandeis there discussed protects a contractor from "specifications" that, in the majority's words, will "frustrate performance or make it impossible," but does not "extend beyond performance to third-party claims against the contractor." Ante, at 425. Spearin itself does not make this distinction. Nor have subsequent cases. See *439 Michigan Wisconsin Pipeline See If the Government must pay, say, for the contractor's own machinery destroyed by a (defectivespecification-caused) explosion when that destruction frustrates performance, see Ordnance Research, why should the Government not have to pay when the explosion takes place just after performance is complete? And, why should it not have to reimburse the contractor's payment for identical damage caused his nextdoor neighbor in the same explosion? In any event, whether or not there are good answers to these questions, they are unlikely to answer plaintiffs' further argument, namely that, even if Spearin does not compel a decision in their favor, it offers indirect support, as background, for implying a promise that would provide (in the particular circumstances) Spearin-like protection. Fourth, the majority says that the DPA's "hold harmless" provision ("No person shall be held liable for damages for any act or failure to act resulting directly or indirectly from compliance with [an] order") does not provide for indemnification. Ante, at 429. The petitioners, however, do not claim the contrary. They state explicitly that they "do not attempt to interpret the DPA's hold harmless language as an affirmative indemnity." Reply Brief for Petitioners 2. They add that "an indemnity should be implied from all the circumstances of this case, including the circumstance that petitioners and the Government contracted against the backdrop of the sweeping hold harmless language contained in the DPA." They argue simply that the DPA's stated *440 objective—to relieve them of involuntarily created liability— would have led contracting officers in the 1960's (given the parties' uncertainty about future statutory interpretation) to have believed that a contractual "hold harmless" warranty was reasonable in the circumstances, not the contrary. See 3 Contracts 551 (existing statutes and rules of law are always evidence of the meaning of the parties). The relevant point is not whether Congress intended to indemnify, but the likely effect of the DPA's language (before judicial interpretation limited it to an immunity provision) on what risks contracting officers at the time might have thought the Government was assuming in a forced production contract under the Act. Fifth, both the Federal n. 8, and the majority, ante, at 425, imply that a 1960's contracting officer would not have accepted an indemnification provision because of Aero Engineering That case held (in light of the Feres doctrine providing the Government with immunity from armed services personnel tort suits) that Government contractors, whom armed services personnel had sued in tort, could not, in turn, sue the Government for indemnification. Otherwise a soldier, unable (given Feres ) to sue the Government for injury caused, say, by a defective rifle, would sue the rifle manufacturer instead, and the rifle manufacturer would then sue the Government for indemnity, thereby, in a sense, circumventing the immunity that Feres promised the Government. One problem with this argument is that postdates the formation of the contracts here at issue by about a decade. More importantly does not involve contractual promises to indemnify a contractor. Rather it concerns an indemnification provided by state tort law. And, it nowhere says, or directly implies, that the law prohibits the Government from agreeing, explicitly or implicitly, to indemnify a contractor. Indeed, *441 this Court has explicitly written that it "fail[s] to see how the holdingsupports the conclusion that if the Tort Claims Act bars a tort remedy, neither is there a contractual remedy. The absence of Government tort liability has not been thought to bar contractual remedies on implied-in-fact contracts, even in those cases having elements of a tort." Hatzlachh Supply I agree with the majority insofar as it warns against a court's too easily reading an implicit promise to indemnify a contractor's armedservices-related tort liability; but, then, its words would represent simply a wise caution and not an absolute prohibition. In sum, the companies argue factual circumstances—compelled production, superior knowledge, detailed specifications, and significant defect—which, if true, suggest that a government, dealing in good faith with its contractors, would have agreed to the "implied" promise, particularly in light of legal authorities, known at the time, that offered somewhat similar guarantees to contractors in somewhat similar circumstances. The validity of their claim is likely to turn on the strength of the companies' factual case, as supported by evidence, and upon the details of Government contracting practices in the 1960's—matters not now before us and with which the lower courts are more familiar than are we. The Court today unnecessarily restricts Spearin warranties, and, lacking particular facts at this stage of the proceeding, it relies on statutory circumstances that are common to many Government contracts. I fear that the practical effect of disposing of the companies' claim at this stage of the proceeding will be to make it more difficult, in other cases even if not here, for courts to interpret Government contracts with an eye toward achieving the fair allocation of risks that the parties likely intended. For these reasons, I would remand this case for further proceedings.

Justice Thomas

majority

Stewart v. Dutra Constr. Co.

2005-02-22

https://www.courtlistener.com/opinion/137747/stewart-v-dutra-constr-co/

https://www.courtlistener.com/api/rest/v3/clusters/137747/

2004-022

The question in this case is whether a dredge is a "vessel" under § 2(3)(G) of the Longshore and Harbor Workers' Compensation Act (LHWCA), 44 Stat. (pt. 2) 1425, as added by § 2(a) of Pub. L. 98-426, 33 U.S. C. § 902(3)(G). We hold that it is. I As part of Boston's Central Artery/Tunnel Project, or "Big Dig," the Commonwealth of Massachusetts undertook to extend the Massachusetts Turnpike through a tunnel running beneath South Boston and Boston Harbor to Logan Airport. The Commonwealth employed respondent Dutra Construction Company to assist in that undertaking. At the time, Dutra owned the world's largest dredge, the Super Scoop, which was capable of digging the 50-foot-deep, 100-foot-wide, three-quarter-mile-long trench beneath Boston Harbor that is now the Ted Williams Tunnel. The Super Scoop is a massive floating platform from which a clamshell bucket is suspended beneath the water. The bucket removes silt from the ocean floor and dumps the sediment onto one of two scows that float alongside the dredge. The Super Scoop has certain characteristics common to seagoing vessels, such as a captain and crew, navigational lights, ballast tanks, and a crew dining area. But it lacks others. Most conspicuously, the Super Scoop has only limited means of self-propulsion. It is moved long distances by tugboat. (To work on the Big Dig, it was towed from its home base in California through the Panama Canal and up the eastern seaboard to Boston Harbor.) It navigates short distances by manipulating its anchors and cables. When dredging the *485 Boston Harbor trench, it typically moved in this way once every couple of hours, covering a distance of 30-to-50 feet each time. Dutra hired petitioner Willard Stewart, a marine engineer, to maintain the mechanical systems on the Super Scoop during its dredging of the harbor. At the time of Stewart's accident, the Super Scoop lay idle because one of its scows, Scow No. 4, had suffered an engine malfunction and the other was at sea. Stewart was on board Scow No. 4, feeding wires through an open hatch located about 10 feet above the engine area. While Stewart was perched beside the hatch, the Super Scoop used its bucket to move the scow. In the process, the scow collided with the Super Scoop, causing a jolt that plunged Stewart headfirst through the hatch to the deck below. He was seriously injured. Stewart sued Dutra in the United States District Court for the District of Massachusetts under the Jones Act, 38 Stat. 1185, as amended, 41 Stat. 1007 and 96 Stat. 1955, 46 U.S. C. App. § 688(a), alleging that he was a seaman injured by Dutra's negligence. He also filed an alternative claim under § 5(b) of the LHWCA, 33 U.S. C. § 905(b), which authorizes covered employees to sue a "vessel" owner as a third party for an injury caused by the owner's negligence. Dutra moved for summary judgment on the Jones Act claim, arguing that Stewart was not a seaman. The company acknowledged that Stewart was "a member of the [Super Scoop's] crew," 230 F.3d 461, 466 (CA1 2000); that he spent "[n]inety-nine percent of his time while on the job" aboard the Super Scoop, App. 20 (Defendant's Memorandum in Support of Summary Judgment); and that his "duties contributed to the function" of the Super Scoop, id., at 32. Dutra argued only that the Super Scoop was not a vessel for purposes of the Jones Act. Dutra pointed to the Court of Appeals' en banc decision in DiGiovanni v. Traylor Brothers, Inc., 959 F.2d 1119 (CA1 1992), which held that "if a *486 barge ... or other float's purpose or primary business is not navigation or commerce, then workers assigned thereto for its shore enterprise are to be considered seamen only when it is in actual navigation or transit" at the time of the plaintiff's injury. Id., at 1123 (internal quotation marks omitted). The District Court granted summary judgment to Dutra, because the Super Scoop's primary purpose was dredging rather than transportation and because it was stationary at the time of Stewart's injury. On interlocutory appeal, the Court of Appeals affirmed, concluding that it too was bound by DiGiovanni. 230 F. 3d, at 467-468. The court reasoned that the Super Scoop's primary function was construction and that "[a]ny navigation or transportation that may be required is incidental to this primary function." Id., at 468. The court also concluded that the scow's movement at the time of the accident did not help Stewart, because his status as a seaman depended on the movement of the Super Scoop (which was stationary) rather than the scow. Id., at 469. On remand, the District Court granted summary judgment in favor of Dutra on Stewart's alternative claim that Dutra was liable for negligence as an owner of a "vessel" under the LHWCA, 33 U.S. C. § 905(b). The Court of Appeals again affirmed. It noted that Dutra had conceded that the Super Scoop was a "vessel" for purposes of § 905(b), explaining that "the LHWCA's definition of `vessel' is `significantly more inclusive than that used for evaluating seaman status under the Jones Act.'" 343 F.3d 10, 13 (CA1 2003) (quoting Morehead v. Atkinson-Kiewit, J/V, 97 F.3d 603, 607 (CA1 1996) (en banc)). The Court of Appeals nonetheless agreed with the District Court's conclusion that Dutra's alleged negligence was committed in its capacity as an employer rather than as owner of the vessel under § 905(b). We granted certiorari to resolve confusion over how to determine whether a watercraft is a "vessel" for purposes of the LHWCA. 540 U.S. 1177 (2004). *487 II Prior to the passage of the Jones Act, general maritime law usually entitled a seaman who fell sick or was injured both to maintenance and cure (or the right to be cared for and paid wages during the voyage, see, e. g., Harden v. Gordon, 11 F. Cas. 480, 482-483 (No. 6,047) (CC Me. 1823) (Story, J.)), and to damages for any "injuries received ... in consequence of the unseaworthiness of the ship," The Osceola, 189 U.S. 158, 175 (1903). Suits against shipowners for negligence, however, were barred. Courts presumed that the seaman, in signing articles of employment for the voyage, had assumed the risks of his occupation; thus a seaman was "not allowed to recover an indemnity for the negligence of the master, or any member of the crew." Ibid. Congress enacted the Jones Act in 1920 to remove this bar to negligence suits by seamen. See Chandris, Inc. v. Latsis, 515 U.S. 347, 354 (1995). Specifically, the Jones Act provides: "Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply." 46 U.S. C. App. § 688(a). Although the statute is silent on who is a "seaman," both the maritime law backdrop against which Congress enacted the Jones Act and Congress' subsequent enactments provide some guidance. First, "seaman" is a term of art that had an established meaning under general maritime law. We have thus presumed that when the Jones Act made available negligence remedies to "[a]ny seaman who shall suffer personal injury in the course of his employment," Congress took the term "seaman" as the general maritime law found it. Chandris, *488 supra, at 355 (citing Warner v. Goltra, 293 U.S. 155, 159 (1934)); G. Gilmore & C. Black, Law of Admiralty § 6-21, pp. 328-329 (2d ed. 1975). Second, Congress provided further guidance in 1927 when it enacted the LHWCA, which provides scheduled compensation to land-based maritime workers but which also excepts from its coverage "a master or member of a crew of any vessel." 33 U.S. C. § 902(3)(G). This exception is simply "a refinement of the term `seaman' in the Jones Act." McDermott Int'l, Inc. v. Wilander, 498 U.S. 337, 347 (1991). Thus, the Jones Act and the LHWCA are complementary regimes that work in tandem: The Jones Act provides tort remedies to sea-based maritime workers, while the LHWCA provides workers' compensation to land-based maritime employees. Ibid.; Swanson v. Marra Brothers, Inc., 328 U.S. 1, 6-7 (1946). Still, discerning the contours of "seaman" status, even with the general maritime law and the LHWCA's language as aids to interpretation, has not been easy. See Chandris, supra, at 356. We began clarifying the definition of "seaman" in a pair of cases, McDermott Int'l, Inc. v. Wilander, supra, and Chandris, supra, that addressed the relationship a worker must have to a vessel in order to be a "master or member" of its crew. We now turn to the other half of the LHWCA's equation: how to determine whether a watercraft is a "vessel." A Just as Congress did not define the term "seaman" in the Jones Act,[1] it did not define the term "vessel" in the LHWCA *489 itself.[2] However, Congress provided a definition elsewhere. At the time of the LHWCA's enactment, §§ 1 and 3 of the Revised Statutes of 1873 specified: "In determining the meaning of the revised statutes, or of any act or resolution of Congress passed subsequent to February twenty-fifth, eighteen hundred and seventy-one, . . . [t]he word `vessel' includes every description of water-craft or other artificial contrivance used, or capable of being used, as a means of transportation on water."[3] 18 Stat., pt. 1, p. 1. Sections 1 and 3 show that, because the LHWCA is an Act of Congress passed after February 25, 1871, the LHWCA's use of the term "vessel" "includes every description of water-craft or other artificial contrivance used, or capable of being used, as a means of transportation on water." Ibid. Section 3's definition, repealed and recodified in 1947 as part of the Rules of Construction Act, 1 U.S. C. §3, has *490 remained virtually unchanged from 1873 to the present.[4] Even now, § 3 continues to supply the default definition of "vessel" throughout the U. S. Code, "unless the context indicates otherwise." 1 U.S. C. § 1. The context surrounding the LHWCA's enactment indicates that § 3 defines the term "vessel" for purposes of the LHWCA. Section 3 merely codified the meaning that the term "vessel" had acquired in general maritime law. See 1 S. Friedell, Benedict on Admiralty § 165 (rev. 7th ed. 2004). In the decades following its enactment, § 3 was regularly used to define the term "vessel" in maritime jurisprudence. Taking only the issue presented here—whether a dredge is a vessel—prior to passage of the Jones Act and the LHWCA, courts often used § 3's definition to conclude that dredges were vessels.[5] From the very beginning, these courts understood the differences between dredges and more traditional seagoing vessels. Though smaller, the dredges at issue in the earliest cases were essentially the same as the Super Scoop here. For instance, the court could have been speaking equally of the Super Scoop as of The Alabama when it declared: "The dredge and scows have no means of propulsion of their own except that the dredge, by the use of anchors, windlass, and rope, is moved for short distances, as required in carrying on the business of dredging. Both *491 the dredge and the scows are moved from place to place where they may be employed by being towed, and some of the tows have been for long distances and upon the high seas. The dredge and scows are not made for or adapted to the carriage of freight or passengers, and the evidence does not show that, in point of fact, this dredge and scows had ever been so used and employed." The Alabama, 19 F. 544, 545 (SD Ala. 1884). See also Huismann v. The Pioneer, 30 F. 206 (EDNY 1886). None of this prevented the court from recognizing that dredges are vessels because they are watercraft with "the capacity to be navigated in and upon the waters." The Alabama, supra, at 546; see also The Pioneer, supra, at 207; The International, 89 F. 484, 485 (CA3 1898). This Court also treated dredges as vessels prior to the passage of the Jones Act and the LHWCA. It did so in a pair of cases, first implicitly in The "Virginia Ehrman" and the "Agnese," 97 U.S. 309 (1878), and then explicitly in Ellis v. United States, 206 U.S. 246 (1907). In Ellis, this Court considered, inter alia, whether workers aboard various dredges and scows were covered by a federal labor law. Just as in the present case, one of the Ellis appellants argued that the dredges at issue were "vessels" within the meaning of Rev. Stat. § 3, now 1 U.S. C. § 3. 206 U.S., at 249. The United States responded that dredges were only vessels, if at all, when in actual navigation as they were "towed from port to port." Id., at 253. Citing § 3, Justice Holmes rejected the Government's argument, stating that "[t]he scows and floating dredges were vessels" that "were within the admiralty jurisdiction of the United States." Id., at 259. These early cases show that at the time Congress enacted the Jones Act and the LHWCA in the 1920's, it was settled that § 3 defined the term "vessel" for purposes of those statutes. It was also settled that a structure's status as a vessel under § 3 depended on whether the structure was a means of maritime transportation. See R. Hughes, Handbook of *492 Admiralty Law § 5, p. 14 (2d ed. 1920). For then, as now, dredges served a waterborne transportation function, since in performing their work they carried machinery, equipment, and crew over water. See, e. g., Butler v. Ellis, 45 F.2d 951, 955 (CA4 1930) (finding the vessel status of dredges "sustained by the overwhelming weight of authority"); The Hurricane, 2 F.2d 70, 72 (ED Pa. 1924) (expressing "no doubt" that dredges are vessels), aff'd, 9 F.2d 396 (CA3 1925). This Court's cases have continued to treat § 3 as defining the term "vessel" in the LHWCA, and they have continued to construe § 3's definition in light of the term's established meaning in general maritime law. For instance, in Norton v. Warner Co., 321 U.S. 565 (1944), the Court considered whether a worker on a harbor barge was "a master or member of a crew of any vessel" under the LHWCA, 33 U.S. C. § 902(3)(G). In finding that the "barge [was] a vessel within the meaning of the Act," the Court not only quoted § 3's definition of the term "vessel," but it also cited in support of its holding several earlier cases that had held dredges to be vessels based on the general maritime law. 321 U.S., at 571, and n. 4. This Court therefore confirmed in Norton that § 3 defines the term "vessel" in the LHWCA and that § 3 should be construed consistently with the general maritime law. Since Norton, this Court has often said that dredges and comparable watercraft qualify as vessels under the Jones Act and the LHWCA.[6] *493 B Despite this Court's reliance on § 3 in cases like Ellis and Norton, Dutra argues that the Court has implicitly narrowed § 3's definition. Section 3 says that a "vessel" must be "used, or capable of being used, as a means of transportation on water." 18 Stat., pt. 1, p. 1. In a pair of cases, the Court held that a drydock, Cope v. Vallette Dry Dock Co., 119 U.S. 625, 630 (1887), and a wharfboat attached to the mainland, Evansville & Bowling Green Packet Co. v. Chero Cola Bottling Co., 271 U.S. 19, 22 (1926), were not vessels under § 3, because they were not practically capable of being used to transport people, freight, or cargo from place to place. According to Dutra, Cope and Evansville adopted a definition of "vessel" narrower than § 3's text. Dutra misreads Cope and Evansville. In Cope, the plaintiff sought a salvage award for having prevented a drydock from sinking after a steamship collided with it. 119 U.S., at 625-626. At the time of the accident, the drydock, a floating dock used for repairing vessels, was "moored and lying at [the] usual place" it had occupied for the past 20 years. Id., at 626. In those circumstances, the drydock was a "fixed structure" that had been "permanently moored," rather than a vessel that had been temporarily anchored. Id., at 627. Evansville involved a wharfboat secured by cables to the mainland. Local water, electricity, and telephone lines all ran from shore to the wharfboat, evincing a "permanent location." 271 U.S., at 22. And the wharfboat, like the drydock in Cope, was neither "taken from place to place" nor "used to carry freight from one place to another." 271 U.S., at 22. As in Cope, the Court concluded that the wharfboat "was not practically capable of being used as a means of transportation." 271 U.S., at 22. Cope and Evansville did no more than construe § 3 in light of the distinction drawn by the general maritime law between watercraft temporarily stationed in a particular location and those permanently affixed to shore or resting on the *494 ocean floor. See, e. g., The Alabama, 19 F., at 546 (noting that vessels possess "mobility and [the] capacity to navigate," as distinct from fixed structures like wharves, drydocks, and bridges). Simply put, a watercraft is not "capable of being used" for maritime transport in any meaningful sense if it has been permanently moored or otherwise rendered practically incapable of transportation or movement. This distinction is sensible: A ship and its crew do not move in and out of Jones Act coverage depending on whether the ship is at anchor, docked for loading or unloading, or berthed for minor repairs, in the same way that ships taken permanently out of the water as a practical matter do not remain vessels merely because of the remote possibility that they may one day sail again. See Pavone v. Mississippi Riverboat Amusement Corp., 52 F.3d 560, 570 (CA5 1995) (floating casino was no longer a vessel where it "was moored to the shore in a semi-permanent or indefinite manner"); Kathriner v. Unisea, Inc., 975 F.2d 657, 660 (CA9 1992) (floating processing plant was no longer a vessel where a "large opening [had been] cut into her hull," rendering her incapable of moving over the water). Even if the general maritime law had not informed the meaning of § 3, its definition would not sweep within its reach an array of fixed structures not commonly thought of as capable of being used for water transport. See, e.g., Leocal v. Ashcroft, ante, at 9 ("When interpreting a statute, we must give words their `ordinary or natural' meaning" (quoting Smith v. United States, 508 U.S. 223, 228 (1993))). Applying § 3 brings within the purview of the Jones Act the sorts of watercraft considered vessels at the time Congress passed the Act. By including special-purpose vessels like dredges, § 3 sweeps broadly, but the other prerequisites to qualifying for seaman status under the Jones Act provide some limits, notwithstanding § 3's breadth. A maritime worker seeking Jones Act seaman status must also prove that his duties contributed to the vessel's function or mission, *495 and that his connection to the vessel was substantial both in nature and duration. Chandris, 515 U. S., at 376. Thus, even though the Super Scoop is a "vessel," workers injured aboard the Super Scoop are eligible for seaman status only if they are "master[s] or member[s]" of its crew. C The Court of Appeals, relying on its previous en banc decision in DiGiovanni v. Traylor Brothers, Inc., 959 F.2d 1119 (CA1 1992), held that the Super Scoop is not a "vessel" because its primary purpose is not navigation or commerce and because it was not in actual transit at the time of Stewart's injury. 230 F.3d, at 468-469. Neither prong of the Court of Appeals' test is consistent with the text of § 3 or the established meaning of the term "vessel" in general maritime law. Section 3 requires only that a watercraft be "used, or capable of being used, as a means of transportation on water" to qualify as a vessel. It does not require that a watercraft be used primarily for that purpose. See The Alabama, supra, at 546; The International, 89 F., at 485. As the Court of Appeals recognized, the Super Scoop's "function was to move through Boston Harbor, . . . digging the ocean bottom as it moved." 343 F.3d, at 12. In other words, the Super Scoop was not only "capable of being used" to transport equipment and workers over water—it was used to transport those things. Indeed, it could not have dug the Ted Williams Tunnel had it been unable to traverse the Boston Harbor, carrying with it workers like Stewart. Also, a watercraft need not be in motion to qualify as a vessel under § 3. Looking to whether a watercraft is motionless or moving is the sort of "snapshot" test that we rejected in Chandris. Just as a worker does not "oscillate back and forth between Jones Act coverage and other remedies depending on the activity in which the worker was engaged while injured," Chandris, 515 U. S., at 363, neither does a watercraft pass in and out of Jones Act coverage *496 depending on whether it was moving at the time of the accident. Granted, the Court has sometimes spoken of the requirement that a vessel be "in navigation," id., at 373-374, but never to indicate that a structure's locomotion at any given moment mattered. Rather, the point was that structures may lose their character as vessels if they have been withdrawn from the water for extended periods of time. Ibid.; Roper v. United States, 368 U.S. 20, 21, 23 (1961); West v. United States, 361 U.S. 118, 122 (1959). The Court did not mean that the "in navigation" requirement stood apart from § 3, such that a "vessel" for purposes of § 3 might nevertheless not be a "vessel in navigation" for purposes of the Jones Act or the LHWCA. See, e. g., United States v. Templeton, 378 F.3d 845, 851 (CA8 2004) ("[T]he definition of `vessel in navigation' under the Jones Act is not as expansive as the general definition of `vessel'"). Instead, the "in navigation" requirement is an element of the vessel status of a watercraft. It is relevant to whether the craft is "used, or capable of being used" for maritime transportation. A ship long lodged in a drydock or shipyard can again be put to sea, no less than one permanently moored to shore or the ocean floor can be cut loose and made to sail. The question remains in all cases whether the watercraft's use "as a means of transportation on water" is a practical possibility or merely a theoretical one. Supra, at 11-12. In some cases that inquiry may involve factual issues for the jury, Chandris, supra, at 373, but here no relevant facts were in dispute. Dutra conceded that the Super Scoop was only temporarily stationary while Stewart and others were repairing the scow; the Super Scoop had not been taken out of service, permanently anchored, or otherwise rendered practically incapable of maritime transport. Finally, although Dutra argues that the Super Scoop is not a "vessel" under § 902(3)(G), which is the LHWCA provision that excludes seamen from the Act's coverage, Dutra conceded *497 below that the Super Scoop is a "vessel" under § 905(b), which is the LHWCA provision that imposes liability on vessel owners for negligence to longshoremen. The concession was necessary because the Court of Appeals had previously held that § 905(b)'s use of the term "vessel" is "`significantly more inclusive than that used for evaluating seaman status under the Jones Act.'" 343 F.3d, at 13 (quoting Morehead v. Atkinson-Kiewit, 97 F. 3d, at 607). The Court of Appeals' approach is no longer tenable. The LHWCA does not meaningfully define the term "vessel" as it appears in either § 902(3)(G) or § 905(b), see n. 2, supra, and 1 U.S. C. § 3 defines the term "vessel" throughout the LHWCA. III At the time that Congress enacted the LHWCA and since, Rev. Stat. § 3, now 1 U.S. C. § 3, has defined the term "vessel" in the LHWCA. Under § 3, a "vessel" is any watercraft practically capable of maritime transportation, regardless of its primary purpose or state of transit at a particular moment. Because the Super Scoop was engaged in maritime transportation at the time of Stewart's injury, it was a vessel within the meaning of 1 U.S. C. § 3. Despite the seeming incongruity of grouping dredges alongside more traditional seafaring vessels under the maritime statutes, Congress and the courts have long done precisely that: "[I]t seems a stretch of the imagination to class the deck hands of a mud dredge in the quiet waters of a Potomac creek with the bold and skillful mariners who breast the angry waves of the Atlantic; but such and so far-reaching are the principles which underlie the jurisdiction of the courts of admiralty that they adapt themselves to all the new kinds of property and new sets of operatives and new conditions which are brought into existence in the progress of the world." Saylor v. Taylor, 77 F. 476, 479 (CA4 1896). *498 The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. THE CHIEF JUSTICE took no part in the decision of this case.

The question in this case is whether a dredge is a "vessel" under (3)(G) of the Longshore and Harbor Workers' Compensation Act (LHWCA), 44 Stat. (pt. ) 145, as added by (a) of U.S. C. 90(3)(G). We hold that it is. I As part of Boston's Central Artery/Tunnel Project, or "Big Dig," the Commonwealth of Massachusetts undertook to extend the Massachusetts Turnpike through a tunnel running beneath South Boston and Boston Harbor to Logan Airport. The Commonwealth employed respondent Dutra Construction Company to assist in that undertaking. At the time, Dutra owned the world's largest dredge, the Super Scoop, which was capable of digging the 50-foot-deep, 100-foot-wide, three-quarter-mile-long trench beneath Boston Harbor that is now the Ted Williams Tunnel. The Super Scoop is a massive floating platform from which a clamshell bucket is suspended beneath the water. The bucket removes silt from the ocean floor and dumps the sediment onto one of two scows that float alongside the dredge. The Super Scoop has certain characteristics common to seagoing vessels, such as a captain and crew, navigational lights, ballast tanks, and a crew dining area. But it lacks others. Most conspicuously, the Super Scoop has only limited means of self-propulsion. It is moved long distances by tugboat. (To work on the Big Dig, it was towed from its home base in California through the Panama Canal and up the eastern seaboard to Boston Harbor.) It navigates short distances by manipulating its anchors and cables. When dredging the * Boston Harbor trench, it typically moved in this way once every couple of hours, covering a distance of 30-to-50 feet each time. Dutra hired petitioner Willard Stewart, a marine engineer, to maintain the mechanical systems on the Super Scoop during its dredging of the harbor. At the time of Stewart's accident, the Super Scoop lay idle because one of its scows, Scow No. 4, had suffered an engine malfunction and the other was at sea. Stewart was on board Scow No. 4, feeding wires through an open hatch located about 10 feet above the engine area. While Stewart was perched beside the hatch, the Super Scoop used its bucket to move the scow. In the process, the scow collided with the Super Scoop, causing a jolt that plunged Stewart headfirst through the hatch to the deck below. He was seriously injured. Stewart sued Dutra in the United States District Court for the District of Massachusetts under the Jones Act, as amended, and 46 U.S. C. App. 688(a), alleging that he was a seaman injured by Dutra's negligence. He also filed an alternative claim under 5(b) of the LHWCA, 33 U.S. C. 905(b), which authorizes covered employees to sue a "vessel" owner as a third party for an injury caused by the owner's negligence. Dutra moved for summary judgment on the Jones Act claim, arguing that Stewart was not a seaman. The company acknowledged that Stewart was "a member of the [Super Scoop's] crew," ; that he spent "[n]inety-nine percent of his time while on the job" aboard the Super Scoop, App. 0 (Defendant's Memorandum in Support of Summary Judgment); and that his "duties contributed to the function" of the Super Scoop, Dutra argued only that the Super Scoop was not a vessel for purposes of the Jones Act. Dutra pointed to the Court of Appeals' en banc decision in which held that "if a *486 barge or other float's purpose or primary business is not navigation or commerce, then workers assigned thereto for its shore enterprise are to be considered seamen only when it is in actual navigation or transit" at the time of the plaintiff's The District Court granted summary judgment to Dutra, because the Super Scoop's primary purpose was dredging rather than transportation and because it was stationary at the time of Stewart's On interlocutory appeal, the Court of Appeals affirmed, concluding that it too was bound by -468. The court reasoned that the Super Scoop's primary function was construction and that "[a]ny navigation or transportation that may be required is incidental to this primary function." The court also concluded that the scow's movement at the time of the accident did not help Stewart, because his status as a seaman depended on the movement of the Super Scoop (which was stationary) rather than the scow. On remand, the District Court granted summary judgment in favor of Dutra on Stewart's alternative claim that Dutra was liable for negligence as an owner of a "vessel" under the LHWCA, 33 U.S. C. 905(b). The Court of Appeals again affirmed. It noted that Dutra had conceded that the Super Scoop was a "vessel" for purposes of 905(b), explaining that "the LHWCA's definition of `vessel' is `significantly more inclusive than that used for evaluating seaman status under the Jones Act.'" The Court of Appeals nonetheless agreed with the District Court's conclusion that Dutra's alleged negligence was committed in its capacity as an employer rather than as owner of the vessel under 905(b). We granted certiorari to resolve confusion over how to determine whether a watercraft is a "vessel" for purposes of the LHWCA. *487 II Prior to the passage of the Jones Act, general maritime law usually entitled a seaman who fell sick or was injured both to maintenance and cure (or the right to be cared for and paid wages during the voyage, see, e. g., (No. 6,047) (CC Me. 183) (Story, J.)), and to damages for any "injuries received in consequence of the unseaworthiness of the ship," The Osceola, Suits against shipowners for negligence, however, were barred. Courts presumed that the seaman, in signing articles of employment for the voyage, had assumed the risks of his occupation; thus a seaman was "not allowed to recover an indemnity for the negligence of the master, or any member of the crew." Congress enacted the Jones Act in 190 to remove this bar to negligence suits by seamen. See Specifically, the Jones Act provides: "Any seaman who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right of trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply." 46 U.S. C. App. 688(a). Although the statute is silent on who is a "seaman," both the maritime law backdrop against which Congress enacted the Jones Act and Congress' subsequent enactments provide some guidance. First, "seaman" is a term of art that had an established meaning under general maritime We have thus presumed that when the Jones Act made available negligence remedies to "[a]ny seaman who shall suffer personal injury in the course of his employment," Congress took the term "seaman" as the general maritime law found *488 at 355 ); G. Gilmore & C. Black, Law of Admiralty 6-1, pp. 38-39 (d ed. 1975). Second, Congress provided further guidance in 197 when it enacted the LHWCA, which provides scheduled compensation to land-based maritime workers but which also excepts from its coverage "a master or member of a crew of any vessel." 33 U.S. C. 90(3)(G). This exception is simply "a refinement of the term `seaman' in the Jones Act." McDermott Int'l, Thus, the Jones Act and the LHWCA are complementary regimes that work in tandem: The Jones Act provides tort remedies to sea-based maritime workers, while the LHWCA provides workers' compensation to land-based maritime employees. ; Still, discerning the contours of "seaman" status, even with the general maritime law and the LHWCA's language as aids to interpretation, has not been easy. See We began clarifying the definition of "seaman" in a pair of cases, McDermott Int'l, and that addressed the relationship a worker must have to a vessel in order to be a "master or member" of its crew. We now turn to the other half of the LHWCA's equation: how to determine whether a watercraft is a "vessel." A Just as Congress did not define the term "seaman" in the Jones Act,[1] it did not define the term "vessel" in the LHWCA *489 itself.[] However, Congress provided a definition elsewhere. At the time of the LHWCA's enactment, 1 and 3 of the Revised Statutes of 1873 specified: "In determining the meaning of the revised statutes, or of any act or resolution of Congress passed subsequent to February twenty-fifth, eighteen hundred and seventy-one, [t]he word `vessel' includes every description of water-craft or other artificial contrivance used, or capable of being used, as a means of transportation on water."[3] 18 Stat., pt. 1, p. 1. Sections 1 and 3 show that, because the LHWCA is an Act of Congress passed after February 5, 1871, the LHWCA's use of the term "vessel" "includes every description of water-craft or other artificial contrivance used, or capable of being used, as a means of transportation on water." Section 3's definition, repealed and recodified in 1947 as part of the Rules of Construction Act, 1 U.S. C. 3, has *490 remained virtually unchanged from 1873 to the present.[4] Even now, 3 continues to supply the default definition of "vessel" throughout the U. S. Code, "unless the context indicates otherwise." 1 U.S. C. 1. The context surrounding the LHWCA's enactment indicates that 3 defines the term "vessel" for purposes of the LHWCA. Section 3 merely codified the meaning that the term "vessel" had acquired in general maritime See 1 S. Friedell, Benedict on Admiralty 165 In the decades following its enactment, 3 was regularly used to define the term "vessel" in maritime jurisprudence. Taking only the issue presented here—whether a dredge is a vessel—prior to passage of the Jones Act and the LHWCA, courts often used 3's definition to conclude that dredges were vessels.[5] From the very beginning, these courts understood the differences between dredges and more traditional seagoing vessels. Though smaller, the dredges at issue in the earliest cases were essentially the same as the Super Scoop here. For instance, the court could have been speaking equally of the Super Scoop as of The when it declared: "The dredge and scows have no means of propulsion of their own except that the dredge, by the use of anchors, windlass, and rope, is moved for short distances, as required in carrying on the business of dredging. Both *491 the dredge and the scows are moved from place to place where they may be employed by being towed, and some of the tows have been for long distances and upon the high seas. The dredge and scows are not made for or adapted to the carriage of freight or passengers, and the evidence does not show that, in point of fact, this dredge and scows had ever been so used and employed." The See also None of this prevented the court from recognizing that dredges are vessels because they are watercraft with "the capacity to be navigated in and upon the waters." The ; see also The ; The This Court also treated dredges as vessels prior to the passage of the Jones Act and the LHWCA. It did so in a pair of cases, first implicitly in The "Virginia Ehrman" and the "Agnese," and then explicitly in In Ellis, this Court considered, inter alia, whether workers aboard various dredges and scows were covered by a federal labor Just as in the present case, one of the Ellis appellants argued that the dredges at issue were "vessels" within the meaning of Rev. Stat. 3, now 1 U.S. C. The United States responded that dredges were only vessels, if at all, when in actual navigation as they were "towed from port to port." at 5 Citing 3, Justice Holmes rejected the Government's argument, stating that "[t]he scows and floating dredges were vessels" that "were within the admiralty jurisdiction of the United States." These early cases show that at the time Congress enacted the Jones Act and the LHWCA in the 190's, it was settled that 3 defined the term "vessel" for purposes of those statutes. It was also settled that a structure's status as a vessel under 3 depended on whether the structure was a means of maritime transportation. See R. Hughes, Handbook of *49 Admiralty Law 5, p. 14 (d ed. 190). For then, as now, dredges served a waterborne transportation function, since in performing their work they carried machinery, equipment, and crew over water. See, e. g., ; The Hurricane, aff'd, This Court's cases have continued to treat 3 as defining the term "vessel" in the LHWCA, and they have continued to construe 3's definition in light of the term's established meaning in general maritime For instance, in the Court considered whether a worker on a harbor barge was "a master or member of a crew of any vessel" under the LHWCA, 33 U.S. C. 90(3)(G). In finding that the "barge [was] a vessel within the meaning of the Act," the Court not only quoted 3's definition of the term "vessel," but it also cited in support of its holding several earlier cases that had held dredges to be vessels based on the general maritime and n. 4. This Court therefore confirmed in Norton that 3 defines the term "vessel" in the LHWCA and that 3 should be construed consistently with the general maritime Since Norton, this Court has often said that dredges and comparable watercraft qualify as vessels under the Jones Act and the LHWCA.[6] *493 B Despite this Court's reliance on 3 in cases like Ellis and Norton, Dutra argues that the Court has implicitly narrowed 3's definition. Section 3 says that a "vessel" must be "used, or capable of being used, as a means of transportation on water." 18 Stat., pt. 1, p. 1. In a pair of cases, the Court held that a drydock, and a wharfboat attached to the mainland, Evansville & Bowling Green Packet were not vessels under 3, because they were not practically capable of being used to transport people, freight, or cargo from place to place. According to Dutra, Cope and Evansville adopted a definition of "vessel" narrower than 3's text. Dutra misreads Cope and Evansville. In Cope, the plaintiff sought a salvage award for having prevented a drydock from sinking after a steamship collided with -66. At the time of the accident, the drydock, a floating dock used for repairing vessels, was "moored and lying at [the] usual place" it had occupied for the past 0 years. In those circumstances, the drydock was a "fixed structure" that had been "permanently moored," rather than a vessel that had been temporarily anchored. Evansville involved a wharfboat secured by cables to the mainland. Local water, electricity, and telephone lines all ran from shore to the wharfboat, evincing a "permanent location." 71 U.S., at And the wharfboat, like the drydock in Cope, was neither "taken from place to place" nor "used to carry freight from one place to another." 71 U.S., at As in Cope, the Court concluded that the wharfboat "was not practically capable of being used as a means of transportation." 71 U.S., at Cope and Evansville did no more than construe 3 in light of the distinction drawn by the general maritime law between watercraft temporarily stationed in a particular location and those permanently affixed to shore or resting on the *494 ocean floor. See, e. g., The 19 F., Simply put, a watercraft is not "capable of being used" for maritime transport in any meaningful sense if it has been permanently moored or otherwise rendered practically incapable of transportation or movement. This distinction is sensible: A ship and its crew do not move in and out of Jones Act coverage depending on whether the ship is at anchor, docked for loading or unloading, or berthed for minor repairs, in the same way that ships taken permanently out of the water as a practical matter do not remain vessels merely because of the remote possibility that they may one day sail again. See ; Even if the general maritime law had not informed the meaning of 3, its definition would not sweep within its reach an array of fixed structures not commonly thought of as capable of being used for water transport. See, e.g., Leocal v. Ashcroft, ante, at 9 )). Applying 3 brings within the purview of the Jones Act the sorts of watercraft considered vessels at the time Congress passed the Act. By including special-purpose vessels like dredges, 3 sweeps broadly, but the other prerequisites to qualifying for seaman status under the Jones Act provide some limits, notwithstanding 3's breadth. A maritime worker seeking Jones Act seaman status must also prove that his duties contributed to the vessel's function or mission, *495 and that his connection to the vessel was substantial both in nature and duration. Thus, even though the Super Scoop is a "vessel," workers injured aboard the Super Scoop are eligible for seaman status only if they are "master[s] or member[s]" of its crew. C The Court of Appeals, relying on its previous en banc decision in held that the Super Scoop is not a "vessel" because its primary purpose is not navigation or commerce and because it was not in actual transit at the time of Stewart's 30 F.3d, -469. Neither prong of the Court of Appeals' test is consistent with the text of 3 or the established meaning of the term "vessel" in general maritime Section 3 requires only that a watercraft be "used, or capable of being used, as a means of transportation on water" to qualify as a vessel. It does not require that a watercraft be used primarily for that purpose. See The ; The 89 F., at As the Court of Appeals recognized, the Super Scoop's "function was to move through Boston Harbor, digging the ocean bottom as it moved." In other words, the Super Scoop was not only "capable of being used" to transport equipment and workers over water—it was used to transport those things. Indeed, it could not have dug the Ted Williams Tunnel had it been unable to traverse the Boston Harbor, carrying with it workers like Stewart. Also, a watercraft need not be in motion to qualify as a vessel under Looking to whether a watercraft is motionless or moving is the sort of "snapshot" test that we rejected in Just as a worker does not "oscillate back and forth between Jones Act coverage and other remedies depending on the activity in which the worker was engaged while injured," neither does a watercraft pass in and out of Jones Act coverage *496 depending on whether it was moving at the time of the accident. Granted, the Court has sometimes spoken of the requirement that a vessel be "in navigation," but never to indicate that a structure's locomotion at any given moment mattered. Rather, the point was that structures may lose their character as vessels if they have been withdrawn from the water for extended periods of time. ; ; 1 The Court did not mean that the "in navigation" requirement stood apart from 3, such that a "vessel" for purposes of 3 might nevertheless not be a "vessel in navigation" for purposes of the Jones Act or the LHWCA. See, e. g., United Instead, the "in navigation" requirement is an element of the vessel status of a watercraft. It is relevant to whether the craft is "used, or capable of being used" for maritime transportation. A ship long lodged in a drydock or shipyard can again be put to sea, no less than one permanently moored to shore or the ocean floor can be cut loose and made to sail. The question remains in all cases whether the watercraft's use "as a means of transportation on water" is a practical possibility or merely a theoretical one. In some cases that inquiry may involve factual issues for the jury, but here no relevant facts were in dispute. Dutra conceded that the Super Scoop was only temporarily stationary while Stewart and others were repairing the scow; the Super Scoop had not been taken out of service, permanently anchored, or otherwise rendered practically incapable of maritime transport. Finally, although Dutra argues that the Super Scoop is not a "vessel" under 90(3)(G), which is the LHWCA provision that excludes seamen from the Act's coverage, Dutra conceded *497 below that the Super Scoop is a "vessel" under 905(b), which is the LHWCA provision that imposes liability on vessel owners for negligence to longshoremen. The concession was necessary because the Court of Appeals had previously held that 905(b)'s use of the term "vessel" is "`significantly more inclusive than that used for evaluating seaman status under the Jones Act.'" 343 F.3d, at (quoting Morehead v. 97 F. 3d, at ). The Court of Appeals' approach is no longer tenable. The LHWCA does not meaningfully define the term "vessel" as it appears in either 90(3)(G) or 905(b), see n. and 1 U.S. C. 3 defines the term "vessel" throughout the LHWCA. III At the time that Congress enacted the LHWCA and since, Rev. Stat. 3, now 1 U.S. C. 3, has defined the term "vessel" in the LHWCA. Under 3, a "vessel" is any watercraft practically capable of maritime transportation, regardless of its primary purpose or state of transit at a particular moment. Because the Super Scoop was engaged in maritime transportation at the time of Stewart's injury, it was a vessel within the meaning of 1 U.S. C. Despite the seeming incongruity of grouping dredges alongside more traditional seafaring vessels under the maritime statutes, Congress and the courts have long done precisely that: "[I]t seems a stretch of the imagination to class the deck hands of a mud dredge in the quiet waters of a Potomac creek with the bold and skillful mariners who breast the angry waves of the Atlantic; but such and so far-reaching are the principles which underlie the jurisdiction of the courts of admiralty that they adapt themselves to all the new kinds of property and new sets of operatives and new conditions which are brought into existence in the progress of the world." *498 The judgment of the Court of Appeals is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. THE CHIEF JUSTICE took no part in the decision of this case.

Justice Thomas

majority

Davila v. Davis

2017-06-26

https://www.courtlistener.com/opinion/4403796/davila-v-davis/

https://www.courtlistener.com/api/rest/v3/clusters/4403796/

2016-071

Federal habeas courts reviewing convictions from state courts will not consider claims that a state court refused to hear based on an adequate and independent state proce- dural ground. A state prisoner may be able to overcome this bar, however, if he can establish “cause” to excuse the procedural default and demonstrate that he suffered actual prejudice from the alleged error. An attorney error does not qualify as “cause” to excuse a procedural default unless the error amounted to constitutionally ineffective assistance of counsel. Because a prisoner does not have a constitutional right to counsel in state postconviction proceedings, ineffective assistance in those proceedings does not qualify as cause to excuse a procedural default. See Coleman v. Thompson, 501 U.S. 722 (1991). In Martinez v. Ryan, 566 U.S. 1 (2012), and Trevino v. Thaler, 569 U.S. 413 (2013), this Court announced a narrow exception to Coleman’s general rule. That excep- tion treats ineffective assistance by a prisoner’s state 2 DAVILA v. DAVIS Opinion of the Court postconviction counsel as cause to overcome the default of a single claim—ineffective assistance of trial counsel—in a single context—where the State effectively requires a defendant to bring that claim in state postconviction proceedings rather than on direct appeal. The question in this case is whether we should extend that exception to allow federal courts to consider a different kind of defaulted claim—ineffective assistance of appellate counsel. We decline to do so. I A On April 6, 2008, a group of family and friends gathered at Annette Stevenson’s home to celebrate her granddaugh- ter’s birthday. Petitioner Erick Daniel Davila, believing he had seen a member of a rival street gang at the celebra- tion, fired a rifle at the group while they were eating cake and ice cream. He shot and killed Annette and her 5-year- old granddaughter Queshawn, and he wounded three other children and one woman. After the police arrested petitioner, he confessed to the killings. He stated that he “wasn’t aiming at the kids or the woman,” but that he was trying to kill Annette’s son (and Queshawn’s father) Jerry Stevenson and the other “guys on the porch.” App. 38. The other “guys on the porch” were, apparently, women. The State indicted petitioner for capital murder under Tex. Penal Code Ann. §19.03(a)(7)(A) (West 2016), which makes it a capital crime to “murde[r] more than one per- son . . . during the same criminal transaction.” In re- sponse to the jury’s request for clarification during delib- erations, the trial court proposed instructing the jury on transferred intent. Under that doctrine, the jury could find petitioner guilty of murder if it determined that he intended to kill one person but instead killed a different person. Petitioner’s counsel objected to the additional Cite as: 582 U. S. ____ (2017) 3 Opinion of the Court instruction, arguing that the trial judge should “wait” to submit it “until the jury indicates that they can’t reach . . . a resolution.” App. 51. The trial court overruled the objection and submitted the instruction to the jury. The jury convicted petitioner of capital murder, and the trial court sentenced petitioner to death. B Petitioner appealed his conviction and sentence. Al- though his appellate counsel argued that the State pre- sented insufficient evidence to show that he acted with the requisite intent, counsel did not challenge the instruction about transferred intent. The Texas Court of Criminal Appeals affirmed petitioner’s conviction and sentence. Davila v. State, 2011 WL 303265 (Jan. 26, 2011), cert. denied, 565 U.S. 885 (2011). Petitioner next sought habeas relief in Texas state court. His counsel did not challenge the instruction about transferred intent, nor did he challenge the failure of his appellate counsel to raise the alleged instructional error on direct appeal. The Texas Court of Criminal Appeals denied relief. Ex parte Davila, 2013 WL 1655549 (Apr. 17, 2013), cert. denied, 571 U. S. ___ (2013). C Petitioner then sought habeas relief in Federal District Court under 28 U.S. C. §2254. As relevant here, he ar- gued that his appellate counsel provided ineffective assis- tance by failing to challenge the jury instruction about transferred intent. Petitioner conceded that he had failed to raise his claim of ineffective assistance of appellate counsel in his state habeas petition, but argued that the failure was the result of his state habeas counsel’s ineffec- tive assistance. Petitioner invoked this Court’s decisions in Martinez and Trevino to argue that his state habeas attorney’s ineffective assistance provided cause to excuse 4 DAVILA v. DAVIS Opinion of the Court the procedural default of his claim of ineffective assistance of appellate counsel. The District Court denied petitioner’s §2254 petition. It concluded that Martinez and Trevino did not supply cause to excuse the procedural default of petitioner’s claim of ineffective assistance of appellate counsel because those decisions applied exclusively to claims of ineffective assis- tance of trial counsel. See Davila v. Stephens, 2015 WL 1808689, *20 (ND Tex., Apr. 21, 2015). The Court of Appeals for the Fifth Circuit denied a certificate of ap- pealability on the same ground. 650 Fed. Appx. 860, 867– 868 (2016). Petitioner then sought a writ of certiorari, asking us to reverse the Fifth Circuit on the ground that Martinez and Trevino should be extended to claims of ineffective assistance of appellate counsel. We granted certiorari, 580 U. S. ___ (2017), and now affirm. II Our decision in this case is guided by two fundamental tenets of federal review of state convictions. First, a state prisoner must exhaust available state remedies before presenting his claim to a federal habeas court. §2254(b)(1)(A). The exhaustion requirement is designed to avoid the “unseemly” result of a federal court “upset[ting] a state court conviction without” first according the state courts an “opportunity to . . . correct a constitutional viola- tion,” Rose v. Lundy, 455 U.S. 509, 518 (1982) (internal quotation marks omitted). Second, a federal court may not review federal claims that were procedurally defaulted in state court—that is, claims that the state court denied based on an adequate and independent state procedural rule. E.g., Beard v. Kindler, 558 U.S. 53, 55 (2009). This is an important “corollary” to the exhaustion requirement. Dretke v. Ha- ley, 541 U.S. 386, 392 (2004). “Just as in those cases in which a state prisoner fails to exhaust state remedies, a Cite as: 582 U. S. ____ (2017) 5 Opinion of the Court habeas petitioner who has failed to meet the State’s proce- dural requirements for presenting his federal claims has deprived the state courts of an opportunity to address” the merits of “those claims in the first instance.” Coleman, 501 U.S., at 731–732.1 The procedural default doctrine thus advances the same comity, finality, and federalism interests advanced by the exhaustion doctrine. See McCleskey v. Zant, 499 U.S. 467, 493 (1991). A state prisoner may overcome the prohibition on re- viewing procedurally defaulted claims if he can show “cause” to excuse his failure to comply with the state procedural rule and “actual prejudice resulting from the alleged constitutional violation.” Wainwright v. Sykes, 433 U.S. 72, 84 (1977); Coleman, supra, at 750. To establish “cause”—the element of the doctrine relevant in this case—the prisoner must “show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” Murray v. Carrier, 477 U.S. 478, 488 (1986). A factor is external to the defense if it “cannot fairly be attributed to” the prisoner. Coleman, supra, at 753. —————— 1 The Fifth Circuit treats unexhausted claims as procedurally de- faulted if “the court to which the petitioner would be required to pre- sent his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.” Bagwell v. Dretke, 372 F.3d 748, 755 (2004) (internal quotation marks omitted); cf. Coleman, 501 U.S., at 735, n. Relying on this doctrine, the District Court concluded that petitioner’s federal claim was procedurally defaulted (even though a state court had never actually found it procedurally barred) because Texas law would likely bar a Texas court from deciding the claim on the merits if petitioner were to present it in a successive habeas petition. Davila v. Stephens, 2015 WL 1808689, *19–*20 (ND Tex., Apr. 21, 2015) (citing Davila v. Stephens, 2014 WL 5879879, *2 (ND Tex., Nov. 10, 2014)); see also Davila v. Stephens, 2014 WL 6057907, *2 (ND Tex., Nov. 10, 2014). Petitioner did not seek a certificate of appealability regarding that holding, and neither petitioner nor the State disputes in this Court that the claim was procedurally defaulted. Accordingly, we assume that it was procedurally defaulted for purposes of this case. 6 DAVILA v. DAVIS Opinion of the Court It has long been the rule that attorney error is an objec- tive external factor providing cause for excusing a proce- dural default only if that error amounted to a deprivation of the constitutional right to counsel. See Edwards v. Carpenter, 529 U.S. 446, 451 (2000). An error amounting to constitutionally ineffective assistance is “imputed to the State” and is therefore external to the prisoner. Murray, supra, at 488. Attorney error that does not violate the Constitution, however, is attributed to the prisoner “under well-settled principles of agency law.” Coleman, supra, at 754. It follows, then, that in proceedings for which the Constitution does not guarantee the assistance of counsel at all, attorney error cannot provide cause to excuse a default. Thus, in Coleman, this Court held that attorney error committed in the course of state postconviction proceedings—for which the Constitution does not guaran- tee the right to counsel, see Murray v. Giarratano, 492 U.S. 1 (1989) (plurality opinion)—cannot supply cause to excuse a procedural default that occurs in those proceed- ings. 501 U.S., at 755. In Martinez, this Court announced a narrow, “equitable . . . qualification” of the rule in Coleman that applies where state law requires prisoners to raise claims of inef- fective assistance of trial counsel “in an initial-review collateral proceeding,” rather than on direct appeal. Mar- tinez, 566 U.S., at 16, 17. It held that, in those situations, “a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if ” the default results from the ineffective assis- tance of the prisoner’s counsel in the collateral proceeding. Id., at 17. In Trevino, the Court clarified that this excep- tion applies both where state law explicitly prohibits prisoners from bringing claims of ineffective assistance of trial counsel on direct appeal and where the State’s “pro- cedural framework, by reason of its design and operation, makes it unlikely in a typical case that a defendant will Cite as: 582 U. S. ____ (2017) 7 Opinion of the Court have a meaningful opportunity to raise” that claim on direct appeal. 569 U. S., at ___ (slip op., at 14). III Petitioner asks us to extend Martinez to allow a federal court to hear a substantial, but procedurally defaulted, claim of ineffective assistance of appellate counsel when a prisoner’s state postconviction counsel provides ineffective assistance by failing to raise that claim. We decline to do so. A On its face, Martinez provides no support for extending its narrow exception to new categories of procedurally defaulted claims. Martinez did not purport to displace Coleman as the general rule governing procedural default. Rather, it “qualifie[d] Coleman by recognizing a narrow exception” that applies only to claims of “ineffective assis- tance of counsel at trial” and only when, “under state law,” those claims “must be raised in an initial-review collateral proceeding.” Martinez, supra, at 9, 17. And Trevino merely clarified that the exception applies whether state law explicitly or effectively forecloses review of the claim on direct appeal. 569 U. S., at ___ (slip op. at 2, 13). In all but those “limited circumstances,” Martinez made clear that “[t]he rule of Coleman governs.” 566 U.S., at 16. Applying Martinez’s highly circumscribed, equitable ex- ception to new categories of procedurally defaulted claims would thus do precisely what this Court disclaimed in Martinez: Replace the rule of Coleman with the exception of Martinez. B Petitioner also finds no support in the underlying ra- tionale of Martinez. Petitioner’s primary argument is that his claim of ineffective assistance of appellate counsel might never be reviewed by any court, state or federal, 8 DAVILA v. DAVIS Opinion of the Court without expanding the exception to the rule in Coleman. He argues that this situation is analogous to Martinez, where the Court expressed that same concern about claims of ineffective assistance of trial counsel. But the Court in Martinez was principally concerned about trial errors—in particular, claims of ineffective assistance of trial counsel. Ineffective assistance of appellate counsel is not a trial error. Nor is petitioner’s rule necessary to ensure that a meritorious trial error (of any kind) receives review. 1 Petitioner argues that allowing a claim of ineffective assistance of appellate counsel to evade review is just as concerning as allowing a claim of ineffective assistance of trial counsel to evade review. Brief for Petitioner 12; see also id., at 18–26. We do not agree. The criminal trial enjoys pride of place in our criminal justice system in a way that an appeal from that trial does not. The Constitution twice guarantees the right to a criminal trial, see Art. III, §2; Amdt. 6, but does not guar- antee the right to an appeal at all, Halbert v. Michigan, 545 U.S. 605, 610 (2005). The trial “is the main event at which a defendant’s rights are to be determined,” McFar- land v. Scott, 512 U.S. 849, 859 (1994) (internal quotation marks omitted), “and not simply a tryout on the road to appellate review,” Freytag v. Commissioner, 501 U.S. 868, 895 (1991) (Scalia, J., concurring in part and concurring in judgment) (internal quotation marks omitted). And it is where the stakes for the defendant are highest, not least because it is where a presumptively innocent defendant is adjudged guilty, see Ross v. Moffitt, 417 U.S. 600, 610 (1974); Wainwright, 433 U.S., at 90, and where the trial judge or jury makes factual findings that nearly always receive deference on appeal and collateral review, see Jackson v. Virginia, 443 U.S. 307, 318–319 (1979); see Cite as: 582 U. S. ____ (2017) 9 Opinion of the Court also Cavazos v. Smith, 565 U.S. 1, 2 (2011) ( per curiam) (under deferential standard of review, “judges will some- times encounter convictions that they believe to be mis- taken, but that they must nevertheless uphold”). The Court in Martinez made clear that it exercised its equitable discretion in view of the unique importance of protecting a defendant’s trial rights, particularly the right to effective assistance of trial counsel. As the Court ex- plained, “the limited nature” of its holding “reflect[ed] the importance of the right to the effective assistance of trial counsel,” which is “a bedrock principle in our justice sys- tem.” 566 U.S., at 12, 16 (emphasis added). In declining to expand the Martinez exception to the distinct context of ineffective assistance of appellate counsel, we do no more than respect that judgment. 2 Petitioner’s rule also is not required to ensure that meritorious claims of trial error receive review by at least one state or federal court—the chief concern identified by this Court in Martinez. See id., at 10, 12. Martinez was concerned that a claim of trial error—specifically, ineffec- tive assistance of trial counsel—might escape review in a State that required prisoners to bring the claim for the first time in state postconviction proceedings rather than on direct appeal. Because it is difficult to assess a trial attorney’s performance until the trial has ended, a trial court ordinarily will not have the opportunity to rule on such a claim. And when the State requires a prisoner to wait until postconviction proceedings to raise the claim, the appellate court on direct appeal also will not have the opportunity to review it. If postconviction counsel then fails to raise the claim, no state court will ever review it. Finally, because attorney error in a state postconviction proceeding does not qualify as cause to excuse procedural default under Coleman, no federal court could consider the 10 DAVILA v. DAVIS Opinion of the Court claim either. Claims of ineffective assistance of appellate counsel, however, do not pose the same risk that a trial error—of any kind—will escape review altogether, at least in a way that could be remedied by petitioner’s proposed rule. This is true regardless of whether trial counsel preserved the alleged error at trial. If trial counsel preserved the error by properly objecting, then that claim of trial error “will have been addressed by . . . the trial court.” Martinez, 566 U.S., at 11. A claim of appellate ineffectiveness premised on a preserved trial error thus does not present the same concern that animated the Martinez exception because at least “one court” will have considered the claim on the merits. Ibid.; see also Coleman, 501 U.S., at 755–756. If trial counsel failed to preserve the error at trial, then petitioner’s proposed rule ordinarily would not give the prisoner access to federal review of the error, anyway. Effective appellate counsel should not raise every nonfriv- olous argument on appeal, but rather only those argu- ments most likely to succeed. Smith v. Murray, 477 U.S. 527, 536 (1986); Jones v. Barnes, 463 U.S. 745, 751–753 (1983). Declining to raise a claim on appeal, therefore, is not deficient performance unless that claim was plainly stronger than those actually presented to the appellate court. See Smith v. Robbins, 528 U.S. 259, 288 (2000). In most cases, an unpreserved trial error will not be a plainly stronger ground for appeal than preserved errors. See 2 B. Means, Postconviction Remedies §35:19, p. 627, and n. 16 (2016). Thus, in most instances in which the trial court did not rule on the alleged trial error (because it was not preserved), the prisoner could not make out a substan- tial claim of ineffective assistance of appellate counsel and therefore could not avail himself of petitioner’s expanded Martinez exception. Adopting petitioner’s proposed rule would be unneces- sary to ensure review of a claim of trial error even when a Cite as: 582 U. S. ____ (2017) 11 Opinion of the Court prisoner has a legitimate claim of ineffective assistance of appellate counsel based on something other than a pre- served trial error. If an unpreserved trial error was so obvious that appellate counsel was constitutionally re- quired to raise it on appeal, then trial counsel likely pro- vided ineffective assistance by failing to object to it in the first instance. In that circumstance, the prisoner likely could invoke Martinez or Coleman to obtain review of trial counsel’s failure to object. Similarly, if the underlying, defaulted claim of trial error was ineffective assistance of trial counsel premised on something other than the failure to object, then Martinez and Coleman again already pro- vide a vehicle for obtaining review of that error in most circumstances. Petitioner’s proposed rule is thus unneces- sary for ensuring that trial errors are reviewed by at least one court. C The Court in Martinez also was responding to an equi- table consideration that is unique to claims of ineffective assistance of trial counsel and accordingly inapplicable to claims of ineffective assistance of appellate counsel. In Martinez, the State “deliberately cho[se] to move trial- ineffectiveness claims outside of the direct-appeal process, where counsel is constitutionally guaranteed,” into the postconviction review process, where we have never held that the Constitution guarantees a right to counsel. 566 U.S., at 13; id., at 9. By doing so, “the State significantly diminishe[d] prisoners’ ability to file such claims.” Id., at 13. Similarly, in Trevino, the State had chosen a proce- dural framework pursuant to which collateral review was, “as a practical matter, the onl[y] method for raising an ineffective-assistance-of-trial-counsel claim.” 569 U. S., at ___ (slip op., at 13). Although this Court acknowledged in Martinez that there was nothing inappropriate about the State’s choice, 12 DAVILA v. DAVIS Opinion of the Court it explained that the choice was “not without consequences for the State’s ability to assert a procedural default” in subsequent federal habeas proceedings. 566 U.S., at 13. Specifically, the Court concluded that it would be inequi- table to refuse to hear a defaulted claim of ineffective assistance of trial counsel when the State had channeled that claim to a forum where the prisoner might lack the assistance of counsel in raising it. The States have not made a similar choice with respect to claims of ineffective assistance of appellate counsel— nor could they. By their very nature, such claims gener- ally cannot be presented until after the termination of direct appeal. Put another way, they necessarily must be heard in collateral proceedings, where counsel is not constitu- tionally guaranteed. The fact that claims of appellate ineffectiveness are considered in proceedings in which counsel is not constitutionally guaranteed is a function of the nature of the claim, not of the State’s “deliberat[e] cho[ice] to move . . . claims outside of the direct-appeal process.” Ibid. The equitable concerns raised in Martinez therefore do not apply. D Finally, the Court in Martinez grounded its decision in part on the belief that its narrow exception was unlikely to impose significant systemic costs. See id., at 15–16. The same cannot be said of petitioner’s proposed extension. 1 Adopting petitioner’s argument could flood the federal courts with defaulted claims of appellate ineffectiveness. For one thing, every prisoner in the country could bring these claims. Martinez currently applies only to States that deliberately choose to channel claims of ineffective assistance of trial counsel into collateral proceedings. See, e.g., Lee v. Corsini, 777 F.3d 46, 60–61 (CA1 2015) (Mar- Cite as: 582 U. S. ____ (2017) 13 Opinion of the Court tinez and Trevino do not apply to Massachusetts); Henness v. Bagley, 766 F.3d 550, 557 (CA6 2014) (Martinez does not apply to Ohio). If we applied Martinez to claims of appellate ineffectiveness, however, we would bring every State within Martinez’s ambit, because claims of appellate ineffectiveness necessarily must be heard in collateral proceedings. See supra, at 12. Extending Martinez to defaulted claims of ineffective assistance of appellate counsel would be especially trouble- some because those claims could serve as the gateway to federal review of a host of trial errors, while Martinez covers only one trial error (ineffective assistance of trial counsel). If a prisoner can establish ineffective assistance of trial counsel under Martinez, he ordinarily is entitled to a new trial. See United States v. Morrison, 449 U.S. 361, 364–365 (1981); see also Hagens v. State, 979 S.W.2d 788, 792 (Tex. App. 1998). But if he cannot, Martinez provides no avenue for litigating other defaulted trial errors.2 An expanded Martinez exception, however, would mean that any defaulted trial error could result in a new trial. In Carpenter, this Court held that, when a prisoner can show cause to excuse a defaulted claim of ineffective assis- tance of appellate counsel, he can in turn rely on that claim as cause to litigate an underlying claim of trial error that was defaulted due to appellate counsel’s ineffective- ness. 529 U.S., at 453. Expanding Martinez as petitioner —————— 2 The dissent argues that Martinez already provides a gateway to the review of underlying trial errors no differently than would petitioner’s proposed rule. See post, at 7 (opinion of BREYER, J.). That is not so. If a prisoner succeeds on his claim of ineffective assistance of trial counsel under Martinez, the federal habeas court would not need to consider any other claim of trial error since the successful claim of trial ineffec- tiveness—unlike a successful claim of ineffective assistance of appellate counsel—entitles the prisoner to a new trial. See 7 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure §28.4(d), p. 258, n. 75 (4th ed. 2015). 14 DAVILA v. DAVIS Opinion of the Court suggests would thus produce a domino effect: Prisoners could assert their postconviction counsel’s inadequacy as cause to excuse the default of their appellate ineffective- ness claims, and use those newly reviewable appellate ineffectiveness claims as cause to excuse the default of their underlying claims of trial error. Petitioner’s rule thus could ultimately knock down the procedural barriers to federal habeas review of nearly any defaulted claim of trial error. The scope of that review would exceed any- thing the Martinez Court envisioned when it established its narrow exception to Coleman. Petitioner insists that these concerns are overstated because many of the newly raised claims will be meritless. See Brief for Petitioner 28. But even if that were true, courts would still have to undertake the task of separating the wheat from the chaff. And we are not reassured by petitioner’s suggestion that extending Martinez would increase only the number of claims in each petition rather than the number of federal habeas petitions themselves. Reply Brief 14. Each additional claim would require the district court to review the prisoner’s trial record, appel- late briefing, and state postconviction record to determine the claim’s viability. This effort could be repeated at each level of federal review. We cannot “assume that these costs would be negligible,” Murray, 477 U.S., at 487, and we are loath to further “burden . . . scarce federal judicial resources” in this way, McCleskey, 499 U.S., at 491. 2 Expanding Martinez would not only impose significant costs on the federal courts, but would also aggravate the harm to federalism that federal habeas review necessarily causes. Federal habeas review of state convictions “entails significant costs,” Engle v. Isaac, 456 U.S. 107, 126 (1982), “ ‘and intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority,’ ” Cite as: 582 U. S. ____ (2017) 15 Opinion of the Court Harrington v. Richter, 562 U.S. 86, 103 (2011) (quoting Harris v. Reed, 489 U.S. 255, 282 (1989) (KENNEDY, J., dissenting)). It “frustrates both the States’ sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.” Calderon v. Thompson, 523 U.S. 538, 555–556 (1998) (internal quotation marks omit- ted). It “degrades the prominence of the [State] trial,” Engle, supra, at 127, and it “disturbs the State’s signifi- cant interest in repose for concluded litigation [and] denies society the right to punish some admitted offenders,” Harrington, supra, at 103 (internal quotation marks omitted). Apart from increasing the sheer frequency of federal intrusion into state criminal affairs, petitioner’s proposed rule would also undermine the doctrine of procedural default and the values it serves. That doctrine, like the federal habeas statute generally, is designed to ameliorate the injuries to state sovereignty that federal habeas re- view necessarily inflicts by giving state courts the first opportunity to address challenges to convictions in state court, thereby “promoting comity, finality, and federal- ism.” Cullen v. Pinholster, 563 U.S. 170, 185 (2011); McCleskey, supra, at 493. Expanding the narrow excep- tion announced in Martinez would unduly aggravate the “special costs on our federal system” that federal habeas review already imposes. Engle, supra, at 128. 3 Not only would these burdens on the federal courts and our federal system be severe, but the benefit would—as a systemic matter—be small. To be sure, permitting a state prisoner to bring a meritorious constitutional claim that could not otherwise be heard is beneficial to that prisoner. Petitioner’s counsel concedes, however, that relief is granted in, “[i]f any, a very minute number” of “post- conviction ineffective assistance of appellate counsel 16 DAVILA v. DAVIS Opinion of the Court cases.” Tr. of Oral Arg. 14. Indeed, he concedes that the number of meritorious cases is “infinitesimally small.” Ibid. We think it is likely that the claims heard in federal court because of petitioner’s proposed rule would also be largely meritless, given that the proposed rule would generally affect only those cases in which the trial court already adjudicated, and rejected, the prisoner’s argument regarding the alleged underlying trial error. See supra, at 11. Given that petitioner’s proposed rule would likely generate high systemic costs and low systemic benefits, and that the unique concerns of Martinez are not implicated in cases like his, we do not think equity requires an expansion of Martinez. * * * For the foregoing reasons, we affirm the judgment of the Court of Appeals. It is so ordered. Cite as: 582 U. S. ____ (2017) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 16–6219 _________________ ERICK DANIEL DAVILA, PETITIONER v.

Federal habeas courts reviewing convictions from state courts will not consider claims that a state court refused to hear based on an adequate and independent state proce- dural ground. A state prisoner may be able to overcome this bar, however, if he can establish “cause” to excuse the procedural default and demonstrate that he suffered actual prejudice from the alleged error. An attorney error does not qualify as “cause” to excuse a procedural default unless the error amounted to constitutionally ineffective assistance of counsel. Because a prisoner does not have a constitutional right to counsel in state postconviction proceedings, ineffective assistance in those proceedings does not qualify as cause to excuse a procedural default. See In and Trevino v. Thaler, this Court announced a narrow exception to ’s general rule. That excep- tion treats ineffective assistance by a prisoner’s state DAVILA v. DAVIS Opinion of the Court postconviction counsel as cause to overcome the default of a single claim—ineffective assistance of trial counsel—in a single context—where the State effectively requires a defendant to bring that claim in state postconviction proceedings rather than on direct appeal. The question in this case is whether we should extend that exception to allow federal courts to consider a different kind of defaulted claim—ineffective assistance of appellate counsel. We decline to do so. I A On April 6, 008, a group of family and friends gathered at Annette Stevenson’s home to celebrate her granddaugh- ter’s birthday. Petitioner Erick Daniel Davila, believing he had seen a member of a rival street gang at the celebra- tion, fired a rifle at the group while they were eating cake and ice cream. He shot and killed Annette and her 5-year- old granddaughter Queshawn, and he wounded three other children and one woman. After the police arrested petitioner, he confessed to the kill He stated that he “wasn’t aiming at the kids or the woman,” but that he was trying to kill Annette’s son (and Queshawn’s father) Jerry Stevenson and the other “guys on the porch.” App. 38. The other “guys on the porch” were, apparently, women. The State indicted petitioner for capital murder under (a)(7)(A) (West 016), which makes it a capital crime to “murde[r] more than one per- son during the same criminal transaction.” In re- sponse to the jury’s request for clarification during delib- erations, the trial court proposed instructing the jury on transferred intent. Under that doctrine, the jury could find petitioner guilty of murder if it determined that he intended to kill one person but instead killed a different person. Petitioner’s counsel objected to the additional Cite as: 58 U. S. (017) 3 Opinion of the Court instruction, arguing that the trial judge should “wait” to submit it “until the jury indicates that they can’t reach a resolution.” App. 51. The trial court overruled the objection and submitted the instruction to the jury. The jury convicted petitioner of capital murder, and the trial court sentenced petitioner to death. B Petitioner appealed his conviction and sentence. Al- though his appellate counsel argued that the State pre- sented insufficient evidence to show that he acted with the requisite intent, counsel did not challenge the instruction about transferred intent. The Texas Court of Criminal Appeals affirmed petitioner’s conviction and sentence. cert. denied, Petitioner next sought habeas relief in Texas state court. His counsel did not challenge the instruction about transferred intent, nor did he challenge the failure of his appellate counsel to raise the alleged instructional error on direct appeal. The Texas Court of Criminal Appeals denied relief. Ex parte Davila, cert. denied, 571 U. S. C Petitioner then sought habeas relief in Federal District Court under 8 U.S. C. As relevant here, he ar- gued that his appellate counsel provided ineffective assis- tance by failing to challenge the jury instruction about transferred intent. Petitioner conceded that he had failed to raise his claim of ineffective assistance of appellate counsel in his state habeas petition, but argued that the failure was the result of his state habeas counsel’s ineffec- tive assistance. Petitioner invoked this Court’s decisions in Mar and Trevino to argue that his state habeas attorney’s ineffective assistance provided cause to excuse 4 DAVILA v. DAVIS Opinion of the Court the procedural default of his claim of ineffective assistance of appellate counsel. The District Court denied petitioner’s petition. It concluded that Mar and Trevino did not supply cause to excuse the procedural default of petitioner’s claim of ineffective assistance of appellate counsel because those decisions applied exclusively to claims of ineffective assis- tance of trial counsel. See 015 WL 1808689, 0 (ND Tex., Apr. 1, 015). The Court of Appeals for the Fifth Circuit denied a certificate of ap- pealability on the same ground. 867– 868 (016). Petitioner then sought a writ of certiorari, asking us to reverse the Fifth Circuit on the ground that Mar and Trevino should be extended to claims of ineffective assistance of appellate counsel. We granted certiorari, 580 U. S. (017), and now affirm. II Our decision in this case is guided by two fundamental tenets of federal review of state convictions. First, a state prisoner must exhaust available state remedies before presenting his claim to a federal habeas court. (b)(1)(A). The exhaustion requirement is designed to avoid the “unseemly” result of a federal court “upset[ting] a state court conviction without” first according the state courts an “opportunity to correct a constitutional viola- tion,” (internal quotation marks omitted). Second, a federal court may not review federal claims that were procedurally defaulted in state court—that is, claims that the state court denied based on an adequate and independent state procedural rule. E.g., Beard v. Kindler, This is an important “corollary” to the exhaustion requirement. “Just as in those cases in which a state prisoner fails to exhaust state remedies, a Cite as: 58 U. S. (017) 5 Opinion of the Court habeas petitioner who has failed to meet the State’s proce- dural requirements for presenting his federal claims has deprived the state courts of an opportunity to address” the merits of “those claims in the first instance.” –73.1 The procedural default doctrine thus advances the same comity, finality, and federalism interests advanced by the exhaustion doctrine. See A state prisoner may overcome the prohibition on re- viewing procedurally defaulted claims if he can show “cause” to excuse his failure to comply with the state procedural rule and “actual prejudice resulting from the alleged constitutional violation.” v. Sykes, 433 U.S. 7, 84 (1977); To establish “cause”—the element of the doctrine relevant in this case—the prisoner must “show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.” v. Carrier, 477 U.S. 478, 488 (1986). A factor is external to the defense if it “cannot fairly be attributed to” the prisoner. —————— 1 The Fifth Circuit treats unexhausted claims as procedurally de- faulted if “the court to which the petitioner would be required to pre- sent his claims in order to meet the exhaustion requirement would now find the claims procedurally barred.” 7 (internal quotation marks omitted); cf. 501 U.S., at 735, n. Relying on this doctrine, the District Court concluded that petitioner’s federal claim was procedurally defaulted (even though a state court had never actually found it procedurally barred) because Texas law would likely bar a Texas court from deciding the claim on the merits if petitioner were to present it in a successive habeas petition. *19–0 (ND Tex., Apr. 1, 015) (citing (ND Tex., Nov. 10, 014)); see also (ND Tex., Nov. 10, 014). Petitioner did not seek a certificate of appealability regarding that holding, and neither petitioner nor the State disputes in this Court that the claim was procedurally defaulted. Accordingly, we assume that it was procedurally defaulted for purposes of this case. 6 DAVILA v. DAVIS Opinion of the Court It has long been the rule that attorney error is an objec- tive external factor providing cause for excusing a proce- dural default only if that error amounted to a deprivation of the constitutional right to counsel. See Edwards v. Carpenter, An error amounting to constitutionally ineffective assistance is “imputed to the State” and is therefore external to the prisoner. Attorney error that does not violate the Constitution, however, is attributed to the prisoner “under well-settled principles of agency law.” at 754. It follows, then, that in proceedings for which the Constitution does not guarantee the assistance of counsel at all, attorney error cannot provide cause to excuse a default. Thus, in this Court held that attorney error committed in the course of state postconviction proceedings—for which the Constitution does not guaran- tee the right to counsel, see v. Giarratano, 49 U.S. 1 (plurality opinion)—cannot supply cause to excuse a procedural default that occurs in those proceed- 501 U.S., at 7. In Mar, this Court announced a narrow, “equitable qualification” of the rule in that applies where state law requires prisoners to raise claims of inef- fective assistance of trial counsel “in an initial-review collateral proceeding,” rather than on direct appeal. Mar- 17. It held that, in those situations, “a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if ” the default results from the ineffective assis- tance of the prisoner’s counsel in the collateral proceeding. In Trevino, the Court clarified that this excep- tion applies both where state law explicitly prohibits prisoners from bringing claims of ineffective assistance of trial counsel on direct appeal and where the State’s “pro- cedural framework, by reason of its design and operation, makes it unlikely in a typical case that a defendant will Cite as: 58 U. S. (017) 7 Opinion of the Court have a meaningful opportunity to raise” that claim on direct appeal. 569 U. S., at (slip op., at 14). III Petitioner asks us to extend Mar to allow a federal court to hear a substantial, but procedurally defaulted, claim of ineffective assistance of appellate counsel when a prisoner’s state postconviction counsel provides ineffective assistance by failing to raise that claim. We decline to do so. A On its face, Mar provides no support for extending its narrow exception to new categories of procedurally defaulted claims. Mar did not purport to displace as the general rule governing procedural default. Rather, it “qualifie[d] by recognizing a narrow exception” that applies only to claims of “ineffective assis- tance of counsel at trial” and only when, “under state law,” those claims “must be raised in an initial-review collateral proceeding.” Mar, And Trevino merely clarified that the exception applies whether state law explicitly or effectively forecloses review of the claim on direct appeal. 569 U. S., at (slip op. at 13). In all but those “limited circumstances,” Mar made clear that “[t]he rule of governs.” Applying Mar’s highly circumscribed, equitable ex- ception to new categories of procedurally defaulted claims would thus do precisely what this Court disclaimed in Mar: Replace the rule of with the exception of Mar. B Petitioner also finds no support in the underlying ra- tionale of Mar. Petitioner’s primary argument is that his claim of ineffective assistance of appellate counsel might never be reviewed by any court, state or federal, 8 DAVILA v. DAVIS Opinion of the Court without expanding the exception to the rule in He argues that this situation is analogous to Mar, where the Court expressed that same concern about claims of ineffective assistance of trial counsel. But the Court in Mar was principally concerned about trial errors—in particular, claims of ineffective assistance of trial counsel. Ineffective assistance of appellate counsel is not a trial error. Nor is petitioner’s rule necessary to ensure that a meritorious trial error (of any kind) receives review. 1 Petitioner argues that allowing a claim of ineffective assistance of appellate counsel to evade review is just as concerning as allowing a claim of ineffective assistance of trial counsel to evade review. Brief for Petitioner 1; see also at 18–6. We do not agree. The criminal trial enjoys pride of place in our criminal justice system in a way that an appeal from that trial does not. The Constitution twice guarantees the right to a criminal trial, see Art. III, Amdt. 6, but does not guar- antee the right to an appeal at all, The trial “is the main event at which a defendant’s rights are to be determined,” McFar- (internal quotation marks omitted), “and not simply a tryout on the road to appellate review,” 895 (Scalia, J., concurring in part and concurring in judgment) (internal quotation marks omitted). And it is where the stakes for the defendant are highest, not least because it is where a presumptively innocent defendant is adjudged guilty, see (1974); and where the trial judge or jury makes factual findings that nearly always receive deference on appeal and collateral review, see ; see Cite as: 58 U. S. (017) 9 Opinion of the Court also (under deferential standard of review, “judges will some- times encounter convictions that they believe to be mis- taken, but that they must nevertheless uphold”). The Court in Mar made clear that it exercised its equitable discretion in view of the unique importance of protecting a defendant’s trial rights, particularly the right to effective assistance of trial counsel. As the Court ex- plained, “the limited nature” of its holding “reflect[ed] the importance of the right to the effective assistance of trial counsel,” which is “a bedrock principle in our justice sys- tem.” 566 U.S., at 1, 16 In declining to expand the Mar exception to the distinct context of ineffective assistance of appellate counsel, we do no more than respect that judgment. Petitioner’s rule also is not required to ensure that meritorious claims of trial error receive review by at least one state or federal court—the chief concern identified by this Court in Mar. See at 10, 1. Mar was concerned that a claim of trial error—specifically, ineffec- tive assistance of trial counsel—might escape review in a State that required prisoners to bring the claim for the first time in state postconviction proceedings rather than on direct appeal. Because it is difficult to assess a trial attorney’s performance until the trial has ended, a trial court ordinarily will not have the opportunity to rule on such a claim. And when the State requires a prisoner to wait until postconviction proceedings to raise the claim, the appellate court on direct appeal also will not have the opportunity to review it. If postconviction counsel then fails to raise the claim, no state court will ever review it. Finally, because attorney error in a state postconviction proceeding does not qualify as cause to excuse procedural default under no federal court could consider the 10 DAVILA v. DAVIS Opinion of the Court claim either. Claims of ineffective assistance of appellate counsel, however, do not pose the same risk that a trial error—of any kind—will escape review altogether, at least in a way that could be remedied by petitioner’s proposed rule. This is true regardless of whether trial counsel preserved the alleged error at trial. If trial counsel preserved the error by properly objecting, then that claim of trial error “will have been addressed by the trial court.” Mar, 566 U.S., at 11. A claim of appellate ineffectiveness premised on a preserved trial error thus does not present the same concern that animated the Mar exception because at least “one court” will have considered the claim on the merits. ; see also 501 U.S., at 7–756. If trial counsel failed to preserve the error at trial, then petitioner’s proposed rule ordinarily would not give the prisoner access to federal review of the error, anyway. Effective appellate counsel should not raise every nonfriv- olous argument on appeal, but rather only those argu- ments most likely to succeed. Smith v. 477 U.S. 57, 536 (1986); 751–753 (1983). Declining to raise a claim on appeal, therefore, is not deficient performance unless that claim was plainly stronger than those actually presented to the appellate court. See 58 U.S. 59, 88 In most cases, an unpreserved trial error will not be a plainly stronger ground for appeal than preserved errors. See B. Means, Postconviction Remedies p. 67, and n. 16 (016). Thus, in most instances in which the trial court did not rule on the alleged trial error (because it was not preserved), the prisoner could not make out a substan- tial claim of ineffective assistance of appellate counsel and therefore could not avail himself of petitioner’s expanded Mar exception. Adopting petitioner’s proposed rule would be unneces- sary to ensure review of a claim of trial error even when a Cite as: 58 U. S. (017) 11 Opinion of the Court prisoner has a legitimate claim of ineffective assistance of appellate counsel based on something other than a pre- served trial error. If an unpreserved trial error was so obvious that appellate counsel was constitutionally re- quired to raise it on appeal, then trial counsel likely pro- vided ineffective assistance by failing to object to it in the first instance. In that circumstance, the prisoner likely could invoke Mar or to obtain review of trial counsel’s failure to object. Similarly, if the underlying, defaulted claim of trial error was ineffective assistance of trial counsel premised on something other than the failure to object, then Mar and again already pro- vide a vehicle for obtaining review of that error in most circumstances. Petitioner’s proposed rule is thus unneces- sary for ensuring that trial errors are reviewed by at least one court. C The Court in Mar also was responding to an equi- table consideration that is unique to claims of ineffective assistance of trial counsel and accordingly inapplicable to claims of ineffective assistance of appellate counsel. In Mar, the State “deliberately cho[se] to move trial- ineffectiveness claims outside of the direct-appeal process, where counsel is constitutionally guaranteed,” into the postconviction review process, where we have never held that the Constitution guarantees a right to counsel. 566 U.S., at 13; By doing so, “the State significantly diminishe[d] prisoners’ ability to file such claims.” at 13. Similarly, in Trevino, the State had chosen a proce- dural framework pursuant to which collateral review was, “as a practical matter, the onl[y] method for raising an ineffective-assistance-of-trial-counsel claim.” 569 U. S., at (slip op., at 13). Although this Court acknowledged in Mar that there was nothing inappropriate about the State’s choice, 1 DAVILA v. DAVIS Opinion of the Court it explained that the choice was “not without consequences for the State’s ability to assert a procedural default” in subsequent federal habeas proceed Specifically, the Court concluded that it would be inequi- table to refuse to hear a defaulted claim of ineffective assistance of trial counsel when the State had channeled that claim to a forum where the prisoner might lack the assistance of counsel in raising it. The States have not made a similar choice with respect to claims of ineffective assistance of appellate counsel— nor could they. By their very nature, such claims gener- ally cannot be presented until after the termination of direct appeal. Put another way, they necessarily must be heard in collateral proceedings, where counsel is not constitu- tionally guaranteed. The fact that claims of appellate ineffectiveness are considered in proceedings in which counsel is not constitutionally guaranteed is a function of the nature of the claim, not of the State’s “deliberat[e] cho[ice] to move claims outside of the direct-appeal process.” The equitable concerns raised in Mar therefore do not apply. D Finally, the Court in Mar grounded its decision in part on the belief that its narrow exception was unlikely to impose significant systemic costs. See at 15–16. The same cannot be said of petitioner’s proposed extension. 1 Adopting petitioner’s argument could flood the federal courts with defaulted claims of appellate ineffective For one thing, every prisoner in the country could bring these claims. Mar currently applies only to States that deliberately choose to channel claims of ineffective assistance of trial counsel into collateral proceed See, e.g., (CA1 015) (Mar- Cite as: 58 U. S. (017) 13 Opinion of the Court and Trevino do not apply to Massachusetts); Henness v. Bagley, 766 F.3d 0, 7 (CA6 014) (Mar does not apply to Ohio). If we applied Mar to claims of appellate ineffectiveness, however, we would bring every State within Mar’s ambit, because claims of appellate ineffectiveness necessarily must be heard in collateral proceed See at 1. Extending Mar to defaulted claims of ineffective assistance of appellate counsel would be especially trouble- some because those claims could serve as the gateway to federal review of a host of trial errors, while Mar covers only one trial error (ineffective assistance of trial counsel). If a prisoner can establish ineffective assistance of trial counsel under Mar, he ordinarily is entitled to a new trial. See United 364–365 (1981); see also Hagens v. State, 979 S.W.d 788, 79 (Tex. App. 1998). But if he cannot, Mar provides no avenue for litigating other defaulted trial errors. An expanded Mar exception, however, would mean that any defaulted trial error could result in a new trial. In Carpenter, this Court held that, when a prisoner can show cause to excuse a defaulted claim of ineffective assis- tance of appellate counsel, he can in turn rely on that claim as cause to litigate an underlying claim of trial error that was defaulted due to appellate counsel’s ineffective- 59 U.S., at 453. Expanding Mar as petitioner —————— The dissent argues that Mar already provides a gateway to the review of underlying trial errors no differently than would petitioner’s proposed rule. See post, at 7 (opinion of BREYER, J.). That is not so. If a prisoner succeeds on his claim of ineffective assistance of trial counsel under Mar, the federal habeas court would not need to consider any other claim of trial error since the successful claim of trial ineffec- tiveness—unlike a successful claim of ineffective assistance of appellate counsel—entitles the prisoner to a new trial. See 7 W. LaFave, J. Israel, N. King, & O. Kerr, Criminal Procedure §8.4(d), p. 58, n. 75 (4th ed. 015). 14 DAVILA v. DAVIS Opinion of the Court suggests would thus produce a domino effect: Prisoners could assert their postconviction counsel’s inadequacy as cause to excuse the default of their appellate ineffective- ness claims, and use those newly reviewable appellate ineffectiveness claims as cause to excuse the default of their underlying claims of trial error. Petitioner’s rule thus could ultimately knock down the procedural barriers to federal habeas review of nearly any defaulted claim of trial error. The scope of that review would exceed any- thing the Mar Court envisioned when it established its narrow exception to Petitioner insists that these concerns are overstated because many of the newly raised claims will be meritless. See Brief for Petitioner 8. But even if that were true, courts would still have to undertake the task of separating the wheat from the chaff. And we are not reassured by petitioner’s suggestion that extending Mar would increase only the number of claims in each petition rather than the number of federal habeas petitions themselves. Reply Brief 14. Each additional claim would require the district court to review the prisoner’s trial record, appel- late briefing, and state postconviction record to determine the claim’s viability. This effort could be repeated at each level of federal review. We cannot “assume that these costs would be negligible,” and we are loath to further “burden scarce federal judicial resources” in this way, Expanding Mar would not only impose significant costs on the federal courts, but would also aggravate the harm to federalism that federal habeas review necessarily causes. Federal habeas review of state convictions “entails significant costs,” 16 “ ‘and intrudes on state sovereignty to a degree matched by few exercises of federal judicial authority,’ ” Cite as: 58 U. S. (017) 15 Opinion of the Court 56 U.S. 86, (KENNEDY, J., dissenting)). It “frustrates both the States’ sovereign power to punish offenders and their good-faith attempts to honor constitutional rights.” Thompson, 53 U.S. 538, 5–6 (1998) (internal quotation marks omit- ted). It “degrades the prominence of the [State] trial,” at 17, and it “disturbs the State’s signifi- cant interest in repose for concluded litigation [and] denies society the right to punish some admitted offenders,” at (internal quotation marks omitted). Apart from increasing the sheer frequency of federal intrusion into state criminal affairs, petitioner’s proposed rule would also undermine the doctrine of procedural default and the values it serves. That doctrine, like the federal habeas statute generally, is designed to ameliorate the injuries to state sovereignty that federal habeas re- view necessarily inflicts by giving state courts the first opportunity to address challenges to convictions in state court, thereby “promoting comity, finality, and federal- ism.” ; at Expanding the narrow excep- tion announced in Mar would unduly aggravate the “special costs on our federal system” that federal habeas review already imposes. at 18. 3 Not only would these burdens on the federal courts and our federal system be severe, but the benefit would—as a systemic matter—be small. To be sure, permitting a state prisoner to bring a meritorious constitutional claim that could not otherwise be heard is beneficial to that prisoner. Petitioner’s counsel concedes, however, that relief is granted in, “[i]f any, a very minute number” of “post- conviction ineffective assistance of appellate counsel 16 DAVILA v. DAVIS Opinion of the Court cases.” Tr. of Oral Arg. 14. Indeed, he concedes that the number of meritorious cases is “infinitesimally small.” We think it is likely that the claims heard in federal court because of petitioner’s proposed rule would also be largely meritless, given that the proposed rule would generally affect only those cases in which the trial court already adjudicated, and rejected, the prisoner’s argument regarding the alleged underlying trial error. See at 11. Given that petitioner’s proposed rule would likely generate high systemic costs and low systemic benefits, and that the unique concerns of Mar are not implicated in cases like his, we do not think equity requires an expansion of Mar. * * * For the foregoing reasons, we affirm the judgment of the Court of Appeals. It is so ordered. Cite as: 58 U. S. (017) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES No. 16–619 ERICK DANIEL DAVILA, PETITIONER v.

Justice Breyer

dissenting

Davila v. Davis

2017-06-26

https://www.courtlistener.com/opinion/4403796/davila-v-davis/

https://www.courtlistener.com/api/rest/v3/clusters/4403796/

2016-071

As the Court explains, normally a federal habeas court cannot hear a state prisoner’s claim that his trial lawyer was, constitutionally speaking, “ineffective” if the prisoner failed to assert that claim in state court at the appropriate time, that is, if he procedurally defaulted the claim. See ante, at 1 (the prisoner’s failure to raise his federal claim at the initial-review state collateral proceeding amounts to an “adequate and independent state procedural ground” for denying habeas relief). But there are equitable exceptions. In Martinez v. Ryan, 566 U.S. 1 (2012), and later in Trevino v. Thaler, 569 U.S. 413 (2013), we held that, despite the presence of a procedural default, a federal court can nonetheless hear a prisoner’s claim that his trial counsel was ineffective, where (1) the framework of state procedural law “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,” id., at 429; (2) in the state “ ‘initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffec- tive,’ ” ibid. (quoting Martinez, 566 U. S., at 17); and (3) 2 DAVILA v. DAVIS BREYER, J., dissenting “the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit,” id., at 14. In my view, this same exception (with the same qualifi- cations) should apply when a prisoner raises a constitu- tional claim of ineffective assistance of appellate counsel. See, e.g., Evitts v. Lucey, 469 U.S. 387, 396 (1985) (Consti- tution guarantees a defendant an effective appellate coun- sel, just as it guarantees a defendant an effective trial counsel). I Two simple examples help make clear why I believe Martinez and Trevino should govern the outcome of this case. Example One: Ineffective assistance of trial counsel. The prisoner claims that his trial lawyer was ineffective, say, because counsel failed to object to an obviously unfair jury selection, failed to point out that the prosecution had promised numerous benefits to its main witness in return for the witness’ testimony, or failed to object to an errone- ous jury instruction that made conviction and imposition of the death penalty far more likely. Next suppose the prisoner appeals but, per state law, may not bring his ineffective-assistance claim until collateral review in state court (i.e., state habeas corpus), where the prisoner will have a better opportunity to develop his claim and the attorney will be better able to explain his (perhaps strate- gic) reasons for his actions at trial. Suppose that, on collateral review, the prisoner fails to bring up his ineffec- tive-assistance claim, perhaps because he is no longer represented by counsel or because his counsel there is ineffective. Under these circumstances, if his ineffective- assistance claim is a “substantial” one, i.e., it has “some merit,” then Martinez and Trevino hold that a federal Cite as: 582 U. S. ____ (2017) 3 BREYER, J., dissenting court can hear the claim even though the state habeas court did not consider it. See Trevino, supra, at 429; Mar- tinez, supra, at 14. The fact that the prisoner had no lawyer in the initial state habeas proceeding (or his lawyer in that proceeding was ineffective) constitutes grounds for excusing the procedural default. Example Two: Ineffective assistance of appellate counsel. Now suppose that a prisoner claims that the trial court made an important error of law, say, improperly instruct- ing the jury, or that the prosecution engaged in miscon- duct. He believes his lawyer on direct appeal should have raised those errors because they led to his conviction or (as here) a death sentence. The appellate lawyer’s failure to do so, the prisoner might claim, amounts to ineffective assistance of appellate counsel. The prisoner cannot make this argument on direct appeal, for the direct appeal is the very proceeding in which he is represented by the lawyer he says was ineffective. Next suppose the prisoner fails to raise his appellate lawyer’s ineffectiveness at the initial state habeas proceeding, either because he was not repre- sented by counsel in that proceeding or because his coun- sel there also was ineffective. When he brings his case to the federal habeas court, the State contends that the prisoner’s failure to present his claim during the initial state habeas proceeding constitutes a procedural default that precludes federal review of his claim. Given Martinez and Trevino, the prisoner in the first example who complains about his trial counsel can over- come the procedural default but, in the Court’s view today, the prisoner in the second example who complains about his appellate counsel cannot. Why should the law treat the second prisoner differently? Why should the Court not apply the rules of Martinez and Trevino to claims of inef- fective assistance of both trial and appellate counsel? 4 DAVILA v. DAVIS BREYER, J., dissenting II As I have said, the Constitution applies similarly to both prisoners: It guarantees them effective assistance of coun- sel at both trial and during an initial appeal. See Strick- land v. Washington, 466 U.S. 668, 686 (1984) (trial); Evitts, supra, at 396 (appeal). Moreover, the reasoning of Martinez and Trevino applies similarly to both situations. Four features of the claim of ineffective assistance of trial counsel led the Martinez Court to its conclusion. Each equally applies here. First, the Court stressed the importance of the underlying constitutional right to effec- tive assistance of trial counsel, describing it as “a bedrock principle in our justice system.” 566 U.S., at 12. Our cases make clear that the constitutional right to effective assistance of appellate counsel is also critically important. The Court wrote in Douglas v. California, 372 U.S. 353, 357 (1963), that “where the merits of the one and only appeal . . . as of right are decided without benefit of coun- sel, we think an unconstitutional line has been drawn between rich and poor.” The Court held in Evitts that “[a] first appeal as of right . . . is not adjudicated in accord with due process of law if the appellant does not have the effective assistance of an attorney.” 469 U.S., at 396. The Court added that “the promise of Gideon [v. Wainwright, 372 U.S. 335 (1963),] that a criminal defendant has a right to counsel at trial . . . would be a futile gesture un- less it comprehended the right to the effective assistance of counsel” “on appeal.” Id., at 397. And we stated in Martinez itself that “if the attorney appointed by the State to pursue the direct appeal is ineffective, the prisoner has been denied fair process.” 566 U.S., at 11 (citing Coleman v. Thompson, 501 U.S. 722, 754 (1991); Evitts, supra, at 396; Douglas, supra, at 357–358). The fact that, according to Department of Justice statistics, nearly a third of con- victions or sentences in capital cases are overturned at some stage of review suggests the practical importance of Cite as: 582 U. S. ____ (2017) 5 BREYER, J., dissenting the appeal right, particularly in a capital case such as this one. See Dept. of Justice, Bureau of Justice Statistics, Capital Punishment, 2013–Statistical Tables, p. 19, (rev. Dec. 2014) (Table 16); see also Brief for National Associa- tion of Criminal Defense Lawyers et al. as Amici Curiae 10. Second, we pointed out in Martinez that the “initial” state collateral review proceeding “is the first designated proceeding for a prisoner to raise a claim of ineffective assistance at trial.” 566 U.S., at 11. We added that it “is in many ways the equivalent of a prisoner’s direct appeal as to the ineffective-assistance claim.” Ibid. In Trevino, we applied Martinez despite the theoretical possibility that a prisoner might raise an ineffective-assistance-of- trial-counsel claim on direct appeal. We wrote that the State’s procedural system denied prisoners a “meaningful opportunity” to bring ineffective-assistance claims on appeal; in effect, it required them to raise the claim for the first time in state collateral review proceedings. 569 U.S., at 429. This consideration applies a fortiori where the constitu- tional claim at issue is ineffective assistance of appellate counsel. The prisoner cannot raise that kind of claim in the very appeal in which he claims his counsel was ineffec- tive. See Ha Van Nguyen v. Curry, 736 F.3d 1287, 1294– 1295 (CA9 2013). It makes no difference that the nature of the claim, rather than the State’s express rule, makes that so. See Trevino, supra, at 429 (extending Martinez where 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” the claim on direct appeal); Trevino, supra, at 424 (referring to “the inherent nature of most ineffective assis- tance of trial counsel claims ” (emphasis added; internal quotation marks omitted)); see also Martinez, 566 U.S., at 19–20, n. 1 (Scalia, J., dissenting) (There is no “relevant 6 DAVILA v. DAVIS BREYER, J., dissenting difference between cases in which the State says that certain claims can only be brought on collateral review and cases in which those claims by their nature can only be brought on collateral review”). Third, Martinez pointed out that, unless “counsel’s errors in an initial-review collateral proceeding . . . estab- lish cause to excuse the procedural default in a federal habeas proceeding, no court will review the prisoner’s claims.” Id., at 10–11 (majority opinion). The same is true when the prisoner claims ineffective assistance of appel- late counsel. The Court argues to the contrary. It says that at least one court—namely, the trial court—will have considered the underlying legal error. Ante, at 11. (If not, perhaps trial counsel was ineffective.) But I believe the Court here misses the point. The prisoner’s complaint is about the ineffectiveness of his appellate counsel. That ineffective- ness could consist, for example, in counsel’s failure to appeal 10 different erroneous decisions of the trial court. The fact that the trial court made those decisions (assum- ing they are erroneous) does not help the prisoner. To the contrary, it forms the basis of his ineffectiveness claim. In the absence of a Martinez-like rule, the prisoner here (and prisoners in similar cases) would receive no review of their ineffective-assistance claims. Moreover, there will be cases in which no court will consider the underlying trial error, either. Suppose that, during the pendency of the appeal, appellate counsel learns of a Brady violation, juror misconduct, judicial bias, or some similar violation whose basis was not known during the trial. See Brady v. Mary- land, 373 U.S. 83 (1963). And suppose appellate counsel fails to pursue the claim in the manner prescribed by state law. Without the exception petitioner here seeks, no court will hear either the appellate-ineffective-assistance claim or the underlying Brady, misconduct, or bias claim. Fourth, the Martinez Court believed that its decision Cite as: 582 U. S. ____ (2017) 7 BREYER, J., dissenting would “not . . . put a significant strain on state resources.” 566 U.S., at 15. That is because Martinez imposed limit- ing conditions: It excuses only those defaults that (1) occur at the initial-review collateral proceeding; (2) where pris- oner had no counsel, or ineffective counsel, in that pro- ceeding; and (3) where the underlying claim of ineffective assistance is “substantial,” i.e., has “some merit.” Id., at 14–16. Moreover, as the Court pointed out, because many States provide prisoners with counsel in initial-review collateral proceedings (or at least when the prisoner seems to have a meritorious claim), it is unlikely that prisoners will default substantial ineffective-assistance claims. See id., at 14–15 (providing examples). Finally, there is no evidence before us that Martinez has produced a greater- than-expected increase in courts’ workload, even though Martinez applies, as Texas concedes, “in most States.” Tr. of Oral Arg. 38. It therefore seems unlikely that applying Martinez to ineffective-assistance-of-appellate-counsel claims will “put a significant strain on” state or federal resources. As I have said, the same limitations as the Court placed upon the assertion of a Martinez claim would apply here. And the Court’s fear of triggering federal second-guessing of many, if not all, trial errors is of no greater concern here than it was in Martinez, for both trial- and appellate-level ineffectiveness claims “could serve as the gateway to federal review of a host of trial errors.” Ante, at 13. Given a natural judicial hesitation to second-guess counsels’ decisions, it is not surprising that we have no significant evidence of defaulted claims of ineffective assistance with “some merit” flooding the federal courts, either in respect to trial counsel (as in Martinez) or in respect to appellate counsel (as here). See Strickland, 466 U.S., at 690–691 (To prevail on an ineffective-assistance claim, the defend- ant must show that his attorney’s actions “were outside the wide range of professionally competent assistance,” 8 DAVILA v. DAVIS BREYER, J., dissenting rather than strategic decisions to which the court must defer, and that those actions had an “effect on the judgment”). In fact, Texas has supplied some empirical evidence, but that evidence suggests that courts can manage a Martinez exception expanded to include claims of ineffective assis- tance of appellate counsel. Texas says that in the Ninth Circuit, which has applied Martinez to ineffective- assistance-of-appellate-counsel claims since late 2013, petitioners have used the expanded version of Martinez “in dozens” of federal habeas cases. Brief for Respondent 37. (Texas specifically refers to 10 cases, in only 1 of which the petitioner prevailed. Ibid., n. 13.) During that period, state prisoners filed at least 7,500 federal habeas petitions in the Ninth Circuit. See Ninth Circuit Ann. Rep. 71 (2015) (2,468 cases referred to magistrate judges in 2014; 2,693 in 2015). Hence, Texas’ estimate of added workload comes down to an increase of “dozens” of cases out of 7,500 cases in total. That figure represents an increase, but not an increase significant enough to warrant depriving a prisoner of any forum to adjudicate a substantial claim that he was deprived of his constitutional right to effective assistance of appellate counsel. III In my view, the Court’s effort to distinguish Martinez comes down to the following points: (1) Martinez concerned only claims of ineffective trial counsel; (2) Martinez in- volved trial errors that, at least sometimes, would have escaped review, while here at least one court (the trial court) may have reviewed the underlying legal error; (3) Martinez involved cases in which the State itself pre- vented its appellate courts from reviewing the claim of trial counsel’s ineffectiveness, whereas here it is the nature of the ineffectiveness claim that prevents the appellate courts from reviewing it; and (4) extending Martinez could Cite as: 582 U. S. ____ (2017) 9 BREYER, J., dissenting flood the federal system with normally meritless claims. I have explained why I believe the last mentioned em- pirical prediction does not distinguish Martinez and why, in any event, it is unlikely to prove correct. See supra, at 7–8. And I have explained why the second and third points do not successfully distinguish Martinez. The second fails to focus on the relevant claim: ineffective assistance of counsel. See supra, at 6. And it fails to acknowledge that there may be cases in which the trial court will not have considered the legal error underlying the ineffective-assistance claim. Ibid. The third has little to do with the matter. It overlooks the fact that there is no “relevant difference” between cases in which the State requires that certain claims be brought only on collateral review and “cases in which those claims by their nature can only be brought on collateral review,” such as claims of ineffective assistance of appellate counsel. See supra, at 5–6 (quoting Martinez, 566 U.S., at 19–20, n. 1 (Scalia, J., dissenting)). In both cases, the State’s scheme deprives a prisoner from having his substantial constitutional claim heard, through no fault of his own. As to the first point, the Court is of course right. Mar- tinez had to do only with the ineffectiveness of trial coun- sel. But our cases make clear that due process requires a criminal defendant to have effective assistance of appel- late counsel as well. See supra, at 4. Indeed, effective trial counsel and appellate counsel are inextricably con- nected elements of a fair trial. The basic legal principle that should determine the outcome of this case is the principle that requires courts to treat like cases alike. To put the matter more familiarly, what is sauce for the goose is sauce for the gander. The dissent in Martinez wrote that there “is not a dime’s worth of difference in principle between [ineffective-assistance- of-trial-counsel] cases and many other cases in which initial state habeas will be the first opportunity for a 10 DAVILA v. DAVIS BREYER, J., dissenting particular claim to be raised,” including “claims asserting ineffective assistance of appellate counsel.” 566 U.S., at 19 (opinion of Scalia, J.). I agree. With respect, I dissent

As the Court explains, normally a federal habeas court cannot hear a state prisoner’s claim that his trial lawyer was, constitutionally speaking, “ineffective” if the prisoner failed to assert that claim in state court at the appropriate time, that is, if he procedurally defaulted the claim. See ante, at 1 (the prisoner’s failure to raise his federal claim at the initial-review state collateral proceeding amounts to an “adequate and independent state procedural ground” for denying habeas relief). But there are equitable exceptions. In v. Ryan, and later in we held that, despite the presence of a procedural default, a federal court can nonetheless hear a prisoner’s claim that his trial counsel was ineffective, where (1) the framework of state procedural law “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,” ; (2) in the state “ ‘initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffec- tive,’ ” (quoting ); and (3) 2 DAVILA v. DAVIS BREYER, J., dissenting “the underlying ineffective-assistance-of-trial-counsel claim is a substantial one, which is to say that the prisoner must demonstrate that the claim has some merit,” In my view, this same exception (with the same qualifi- cations) should apply when a prisoner raises a constitu- tional claim of ineffective assistance of appellate counsel. See, e.g., (Consti- tution guarantees a defendant an effective appellate coun- sel, just as it guarantees a defendant an effective trial counsel). I Two simple examples help make clear why I believe and should govern the outcome of this case. Example One: Ineffective assistance of trial counsel. The prisoner claims that his trial lawyer was ineffective, say, because counsel failed to object to an obviously unfair jury selection, failed to point out that the prosecution had promised numerous benefits to its main witness in return for the witness’ testimony, or failed to object to an errone- ous jury instruction that made conviction and imposition of the death penalty far more likely. Next suppose the prisoner appeals but, per state law, may not bring his ineffective-assistance claim until collateral review in state court (i.e., state habeas corpus), where the prisoner will have a better opportunity to develop his claim and the attorney will be better able to explain his (perhaps strate- gic) reasons for his actions at trial. Suppose that, on collateral review, the prisoner fails to bring up his ineffec- tive-assistance claim, perhaps because he is no longer represented by counsel or because his counsel there is ineffective. Under these circumstances, if his ineffective- assistance claim is a “substantial” one, i.e., it has “some merit,” then and hold that a federal Cite as: 582 U. S. (2017) 3 BREYER, J., dissenting court can hear the claim even though the state habeas court did not consider it. See ; Mar- The fact that the prisoner had no lawyer in the initial state habeas proceeding (or his lawyer in that proceeding was ineffective) constitutes grounds for excusing the procedural default. Example Two: Ineffective assistance of appellate counsel. Now suppose that a prisoner claims that the trial court made an important error of law, say, improperly instruct- ing the jury, or that the prosecution engaged in miscon- duct. He believes his lawyer on direct appeal should have raised those errors because they led to his conviction or (as here) a death sentence. The appellate lawyer’s failure to do so, the prisoner might claim, amounts to ineffective assistance of appellate counsel. The prisoner cannot make this argument on direct appeal, for the direct appeal is the very proceeding in which he is represented by the lawyer he says was ineffective. Next suppose the prisoner fails to raise his appellate lawyer’s ineffectiveness at the initial state habeas proceeding, either because he was not repre- sented by counsel in that proceeding or because his coun- sel there also was ineffective. When he brings his case to the federal habeas court, the State contends that the prisoner’s failure to present his claim during the initial state habeas proceeding constitutes a procedural default that precludes federal review of his claim. Given and the prisoner in the first example who complains about his trial counsel can over- come the procedural default but, in the Court’s view today, the prisoner in the second example who complains about his appellate counsel cannot. Why should the law treat the second prisoner differently? Why should the Court not apply the rules of and to claims of inef- fective assistance of both trial and appellate counsel? 4 DAVILA v. DAVIS BREYER, J., dissenting II As I have said, the Constitution applies similarly to both prisoners: It guarantees them effective assistance of coun- sel at both trial and during an initial appeal. See Strick- ; at Moreover, the reasoning of and applies similarly to both situations. Four features of the claim of ineffective assistance of trial counsel led the Court to its conclusion. Each equally applies here. First, the Court stressed the importance of the underlying constitutional right to effec- tive assistance of trial counsel, describing it as “a bedrock principle in our justice system.” Our cases make clear that the constitutional right to effective assistance of appellate counsel is also critically important. The Court wrote in 357 that “where the merits of the one and only appeal as of right are decided without benefit of coun- sel, we think an unconstitutional line has been drawn between rich and poor.” The Court held in that “[a] first appeal as of right is not adjudicated in accord with due process of law if the appellant does not have the effective assistance of an attorney.” 469 U.S., at The Court added that “the promise of Gideon [v. Wainwright,] that a criminal defendant has a right to counsel at trial would be a futile gesture un- less it comprehended the right to the effective assistance of counsel” “on appeal.” And we stated in itself that “if the attorney appointed by the State to pursue the direct appeal is ineffective, the prisoner has been denied fair process.” ; at ; at 357–358). The fact that, according to Department of Justice statistics, nearly a third of con- victions or sentences in capital cases are overturned at some stage of review suggests the practical importance of Cite as: 582 U. S. (2017) 5 BREYER, J., dissenting the appeal right, particularly in a capital case such as this one. See Dept. of Justice, Bureau of Justice Statistics, Capital Punishment, 2013–Statistical Tables, p. 19, (rev. Dec. 2014) (Table 16); see also Brief for National Associa- tion of Criminal Defense Lawyers et al. as Amici Curiae 10. Second, we pointed out in that the “initial” state collateral review proceeding “is the first designated proceeding for a prisoner to raise a claim of ineffective assistance at trial.” We added that it “is in many ways the equivalent of a prisoner’s direct appeal as to the ineffective-assistance claim.” In we applied despite the theoretical possibility that a prisoner might raise an ineffective-assistance-of- trial-counsel claim on direct appeal. We wrote that the State’s procedural system denied prisoners a “meaningful opportunity” to bring ineffective-assistance claims on appeal; in effect, it required them to raise the claim for the first time in state collateral review proceedings. 569 U.S., This consideration applies a fortiori where the constitu- tional claim at issue is ineffective assistance of appellate counsel. The prisoner cannot raise that kind of claim in the very appeal in which he claims his counsel was ineffec- tive. See Ha Van 1294– 1295 It makes no difference that the nature of the claim, rather than the State’s express rule, makes that so. See (extending where 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” the claim on direct appeal); (referring to “the inherent nature of most ineffective assis- tance of trial counsel claims ” (emphasis added; internal quotation marks omitted)); see also 566 U.S., at 19–20, n. 1 (Scalia, J., dissenting) (There is no “relevant 6 DAVILA v. DAVIS BREYER, J., dissenting difference between cases in which the State says that certain claims can only be brought on collateral review and cases in which those claims by their nature can only be brought on collateral review”). Third, pointed out that, unless “counsel’s errors in an initial-review collateral proceeding estab- lish cause to excuse the procedural default in a federal habeas proceeding, no court will review the prisoner’s claims.” at 10–11 (majority opinion). The same is true when the prisoner claims ineffective assistance of appel- late counsel. The Court argues to the contrary. It says that at least one court—namely, the trial court—will have considered the underlying legal error. Ante, at 11. (If not, perhaps trial counsel was ineffective.) But I believe the Court here misses the point. The prisoner’s complaint is about the ineffectiveness of his appellate counsel. That ineffective- ness could consist, for example, in counsel’s failure to appeal 10 different erroneous decisions of the trial court. The fact that the trial court made those decisions (assum- ing they are erroneous) does not help the prisoner. To the contrary, it forms the basis of his ineffectiveness claim. In the absence of a -like rule, the prisoner here (and prisoners in similar cases) would receive no review of their ineffective-assistance claims. Moreover, there will be cases in which no court will consider the underlying trial error, either. Suppose that, during the pendency of the appeal, appellate counsel learns of a Brady violation, juror misconduct, judicial bias, or some similar violation whose basis was not known during the trial. See And suppose appellate counsel fails to pursue the claim in the manner prescribed by state law. Without the exception petitioner here seeks, no court will hear either the appellate-ineffective-assistance claim or the underlying Brady, misconduct, or bias claim. Fourth, the Court believed that its decision Cite as: 582 U. S. (2017) 7 BREYER, J., dissenting would “not put a significant strain on state resources.” That is because imposed limit- ing conditions: It excuses only those defaults that (1) occur at the initial-review collateral proceeding; (2) where pris- oner had no counsel, or ineffective counsel, in that pro- ceeding; and (3) where the underlying claim of ineffective assistance is “substantial,” i.e., has “some merit.” at 14–16. Moreover, as the Court pointed out, because many States provide prisoners with counsel in initial-review collateral proceedings (or at least when the prisoner seems to have a meritorious claim), it is unlikely that prisoners will default substantial ineffective-assistance claims. See –15 (providing examples). Finally, there is no evidence before us that has produced a greater- than-expected increase in courts’ workload, even though applies, as Texas concedes, “in most States.” Tr. of Oral Arg. 38. It therefore seems unlikely that applying to ineffective-assistance-of-appellate-counsel claims will “put a significant strain on” state or federal resources. As I have said, the same limitations as the Court placed upon the assertion of a claim would apply here. And the Court’s fear of triggering federal second-guessing of many, if not all, trial errors is of no greater concern here than it was in for both trial- and appellate-level ineffectiveness claims “could serve as the gateway to federal review of a host of trial errors.” Ante, at 13. Given a natural judicial hesitation to second-guess counsels’ decisions, it is not surprising that we have no significant evidence of defaulted claims of ineffective assistance with “some merit” flooding the federal courts, either in respect to trial counsel (as in ) or in respect to appellate counsel (as here). See –691 (To prevail on an ineffective-assistance claim, the defend- ant must show that his attorney’s actions “were outside the wide range of professionally competent assistance,” 8 DAVILA v. DAVIS BREYER, J., dissenting rather than strategic decisions to which the court must defer, and that those actions had an “effect on the judgment”). In fact, Texas has supplied some empirical evidence, but that evidence suggests that courts can manage a exception expanded to include claims of ineffective assis- tance of appellate counsel. Texas says that in the Ninth Circuit, which has applied to ineffective- assistance-of-appellate-counsel claims since late 2013, petitioners have used the expanded version of “in dozens” of federal habeas cases. Brief for Respondent 37. (Texas specifically refers to 10 cases, in only 1 of which the petitioner prevailed. Ib n. 13.) During that period, state prisoners filed at least 7,500 federal habeas petitions in the Ninth Circuit. See Ninth Circuit Ann. Rep. 71 (2015) (2,468 cases referred to magistrate judges in 2014; 2,693 in 2015). Hence, Texas’ estimate of added workload comes down to an increase of “dozens” of cases out of 7,500 cases in total. That figure represents an increase, but not an increase significant enough to warrant depriving a prisoner of any forum to adjudicate a substantial claim that he was deprived of his constitutional right to effective assistance of appellate counsel. III In my view, the Court’s effort to distinguish comes down to the following points: (1) concerned only claims of ineffective trial counsel; (2) in- volved trial errors that, at least sometimes, would have escaped review, while here at least one court (the trial court) may have reviewed the underlying legal error; (3) involved cases in which the State itself pre- vented its appellate courts from reviewing the claim of trial counsel’s ineffectiveness, whereas here it is the nature of the ineffectiveness claim that prevents the appellate courts from reviewing it; and (4) extending could Cite as: 582 U. S. (2017) 9 BREYER, J., dissenting flood the federal system with normally meritless claims. I have explained why I believe the last mentioned em- pirical prediction does not distinguish and why, in any event, it is unlikely to prove correct. See at 7–8. And I have explained why the second and third points do not successfully distinguish The second fails to focus on the relevant claim: ineffective assistance of counsel. See And it fails to acknowledge that there may be cases in which the trial court will not have considered the legal error underlying the ineffective-assistance claim. The third has little to do with the matter. It overlooks the fact that there is no “relevant difference” between cases in which the State requires that certain claims be brought only on collateral review and “cases in which those claims by their nature can only be brought on collateral review,” such as claims of ineffective assistance of appellate counsel. See at 5–6 (quoting –20, n. 1 (Scalia, J., dissenting)). In both cases, the State’s scheme deprives a prisoner from having his substantial constitutional claim heard, through no fault of his own. As to the first point, the Court is of course right. Mar- had to do only with the ineffectiveness of trial coun- sel. But our cases make clear that due process requires a criminal defendant to have effective assistance of appel- late counsel as well. See Indeed, effective trial counsel and appellate counsel are inextricably con- nected elements of a fair trial. The basic legal principle that should determine the outcome of this case is the principle that requires courts to treat like cases alike. To put the matter more familiarly, what is sauce for the goose is sauce for the gander. The dissent in wrote that there “is not a dime’s worth of difference in principle between [ineffective-assistance- of-trial-counsel] cases and many other cases in which initial state habeas will be the first opportunity for a 10 DAVILA v. DAVIS BREYER, J., dissenting particular claim to be raised,” including “claims asserting ineffective assistance of appellate counsel.” 566 U.S., at 19 (opinion of Scalia, J.). I agree. With respect, I dissent

Justice Kagan

majority

Lucia v. SEC

2018-06-21

https://www.courtlistener.com/opinion/4509420/lucia-v-sec/

https://www.courtlistener.com/api/rest/v3/clusters/4509420/

2017-069

The Appointments Clause of the Constitution lays out the permissible methods of appointing “Officers of the United States,” a class of government officials distinct from mere employees. Art. II, §2, cl. 2. This case requires us to decide whether administrative law judges (ALJs) of the Securities and Exchange Commission (SEC or Com- mission) qualify as such “Officers.” In keeping with Frey- tag v. Commissioner, 501 U.S. 868 (1991), we hold that they do. I The SEC has statutory authority to enforce the nation’s securities laws. One way it can do so is by instituting an administrative proceeding against an alleged wrongdoer. By law, the Commission may itself preside over such a proceeding. See 17 CFR §201.110 (2017). But the Com- mission also may, and typically does, delegate that task to an ALJ. See ibid.; 15 U.S. C. §78d–1(a). The SEC cur- rently has five ALJs. Other staff members, rather than the Commission proper, selected them all. See App. to Pet. for Cert. 295a–297a. 2 LUCIA v. SEC Opinion of the Court An ALJ assigned to hear an SEC enforcement action has extensive powers—the “authority to do all things neces- sary and appropriate to discharge his or her duties” and ensure a “fair and orderly” adversarial proceeding. §§201.111, 200.14(a). Those powers “include, but are not limited to,” supervising discovery; issuing, revoking, or modifying subpoenas; deciding motions; ruling on the admissibility of evidence; administering oaths; hearing and examining witnesses; generally “[r]egulating the course of ” the proceeding and the “conduct of the parties and their counsel”; and imposing sanctions for “[c]ontemptuous conduct” or violations of procedural re- quirements. §§201.111, 201.180; see §§200.14(a), 201.230. As that list suggests, an SEC ALJ exercises authority “comparable to” that of a federal district judge conducting a bench trial. Butz v. Economou, 438 U.S. 478, 513 (1978). After a hearing ends, the ALJ issues an “initial deci- sion.” §201.360(a)(1). That decision must set out “findings and conclusions” about all “material issues of fact [and] law”; it also must include the “appropriate order, sanction, relief, or denial thereof.” §201.360(b). The Commission can then review the ALJ’s decision, either upon request or sua sponte. See §201.360(d)(1). But if it opts against review, the Commission “issue[s] an order that the [ALJ’s] decision has become final.” §201.360(d)(2). At that point, the initial decision is “deemed the action of the Commis- sion.” §78d–1(c). This case began when the SEC instituted an adminis- trative proceeding against petitioner Raymond Lucia and his investment company. Lucia marketed a retirement savings strategy called “Buckets of Money.” In the SEC’s view, Lucia used misleading slideshow presentations to deceive prospective clients. The SEC charged Lucia under the Investment Advisers Act, §80b–1 et seq., and assigned ALJ Cameron Elliot to adjudicate the case. After nine Cite as: 585 U. S. ____ (2018) 3 Opinion of the Court days of testimony and argument, Judge Elliot issued an initial decision concluding that Lucia had violated the Act and imposing sanctions, including civil penalties of $300,000 and a lifetime bar from the investment industry. In his decision, Judge Elliot made factual findings about only one of the four ways the SEC thought Lucia’s slideshow misled investors. The Commission thus re- manded for factfinding on the other three claims, explain- ing that an ALJ’s “personal experience with the witnesses” places him “in the best position to make findings of fact” and “resolve any conflicts in the evidence.” App. to Pet. for Cert. 241a. Judge Elliot then made additional findings of deception and issued a revised initial decision, with the same sanctions. See id., at 118a. On appeal to the SEC, Lucia argued that the adminis- trative proceeding was invalid because Judge Elliot had not been constitutionally appointed. According to Lucia, the Commission’s ALJs are “Officers of the United States” and thus subject to the Appointments Clause. Under that Clause, Lucia noted, only the President, “Courts of Law,” or “Heads of Departments” can appoint “Officers.” See Art. II, §2, cl. 2. And none of those actors had made Judge Elliot an ALJ. To be sure, the Commission itself counts as a “Head[ ] of Department[ ].” Ibid.; see Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477, 511–513 (2010). But the Commission had left the task of appointing ALJs, including Judge Elliot, to SEC staff members. See supra, at 1. As a result, Lucia contended, Judge Elliot lacked constitutional authority to do his job. The Commission rejected Lucia’s argument. It held that the SEC’s ALJs are not “Officers of the United States.” Instead, they are “mere employees”—officials with lesser responsibilities who fall outside the Appointments Clause’s ambit. App. to Pet. for Cert. 87a. The Commis- sion reasoned that its ALJs do not “exercise significant 4 LUCIA v. SEC Opinion of the Court authority independent of [its own] supervision.” Id., at 88a. Because that is so (said the SEC), they need no special, high-level appointment. See id., at 86a. Lucia’s claim fared no better in the Court of Appeals for the D. C. Circuit. A panel of that court seconded the Commission’s view that SEC ALJs are employees rather than officers, and so are not subject to the Appointments Clause. See 832 F.3d 277, 283–289 (2016). Lucia then petitioned for rehearing en banc. The Court of Appeals granted that request and heard argument in the case. But the ten members of the en banc court divided evenly, resulting in a per curiam order denying Lucia’s claim. See 868 F.3d 1021 (2017). That decision conflicted with one from the Court of Appeals for the Tenth Circuit. See Bandimere v. SEC, 844 F.3d 1168, 1179 (2016). Lucia asked us to resolve the split by deciding whether the Commission’s ALJs are “Officers of the United States within the meaning of the Appointments Clause.” Pet. for Cert. i. Up to that point, the Federal Government (as represented by the Department of Justice) had defended the Commission’s position that SEC ALJs are employees, not officers. But in responding to Lucia’s petition, the Government switched sides.1 So when we granted the petition, 583 U. S. ___ (2018), we also appointed an amicus curiae to defend the judgment below.2 We now reverse. —————— 1 In the same certiorari-stage brief, the Government asked us to add a second question presented: whether the statutory restrictions on removing the Commission’s ALJs are constitutional. See Brief in Response 21. When we granted certiorari, we chose not to take that step. See 583 U. S. ___ (2018). The Government’s merits brief now asks us again to address the removal issue. See Brief for United States 39–55. We once more decline. No court has addressed that question, and we ordinarily await “thorough lower court opinions to guide our analysis of the merits.” Zivotofsky v. Clinton, 566 U.S. 189, 201 (2012). 2 We appointed Anton Metlitsky to brief and argue the case, 583 U. S. ___ (2018), and he has ably discharged his responsibilities. Cite as: 585 U. S. ____ (2018) 5 Opinion of the Court II The sole question here is whether the Commission’s ALJs are “Officers of the United States” or simply employ- ees of the Federal Government. The Appointments Clause prescribes the exclusive means of appointing “Officers.” Only the President, a court of law, or a head of depart- ment can do so. See Art. II, §2, cl. 2.3 And as all parties agree, none of those actors appointed Judge Elliot before he heard Lucia’s case; instead, SEC staff members gave him an ALJ slot. See Brief for Petitioners 15; Brief for United States 38; Brief for Court-Appointed Amicus Cu- riae 21. So if the Commission’s ALJs are constitutional officers, Lucia raises a valid Appointments Clause claim. The only way to defeat his position is to show that those ALJs are not officers at all, but instead non-officer em- ployees—part of the broad swath of “lesser functionaries” in the Government’s workforce. Buckley v. Valeo, 424 U.S. 1, 126, n. 162 (1976) (per curiam). For if that is true, the Appointments Clause cares not a whit about who named them. See United States v. Germaine, 99 U.S. 508, 510 (1879). Two decisions set out this Court’s basic framework for distinguishing between officers and employees. Germaine held that “civil surgeons” (doctors hired to perform various physical exams) were mere employees because their duties were “occasional or temporary” rather than “continuing —————— 3 That statement elides a distinction, not at issue here, between “principal” and “inferior” officers. See Edmond v. United States, 520 U.S. 651, 659–660 (1997). Only the President, with the advice and consent of the Senate, can appoint a principal officer; but Congress (instead of relying on that method) may authorize the President alone, a court, or a department head to appoint an inferior officer. See ibid. Both the Government and Lucia view the SEC’s ALJs as inferior officers and acknowledge that the Commission, as a head of depart- ment, can constitutionally appoint them. See Brief for United States 38; Brief for Petitioners 50–51. 6 LUCIA v. SEC Opinion of the Court and permanent.” Id., at 511–512. Stressing “ideas of tenure [and] duration,” the Court there made clear that an individual must occupy a “continuing” position established by law to qualify as an officer. Id., at 511. Buckley then set out another requirement, central to this case. It de- termined that members of a federal commission were officers only after finding that they “exercis[ed] significant authority pursuant to the laws of the United States.” 424 U.S., at 126. The inquiry thus focused on the extent of power an individual wields in carrying out his assigned functions. Both the amicus and the Government urge us to elabo- rate on Buckley’s “significant authority” test, but another of our precedents makes that project unnecessary. The standard is no doubt framed in general terms, tempting advocates to add whatever glosses best suit their argu- ments. See Brief for Amicus Curiae 14 (contending that an individual wields “significant authority” when he has “(i) the power to bind the government or private parties (ii) in her own name rather than in the name of a superior officer”); Reply Brief for United States 2 (countering that an individual wields that authority when he has “the power to bind the government or third parties on signifi- cant matters” or to undertake other “important and dis- tinctively sovereign functions”). And maybe one day we will see a need to refine or enhance the test Buckley set out so concisely. But that day is not this one, because in Freytag v. Commissioner, 501 U.S. 868 (1991), we applied the unadorned “significant authority” test to adjudicative officials who are near-carbon copies of the Commission’s ALJs. As we now explain, our analysis there (sans any more detailed legal criteria) necessarily decides this case. The officials at issue in Freytag were the “special trial judges” (STJs) of the United States Tax Court. The au- thority of those judges depended on the significance of the tax dispute before them. In “comparatively narrow and Cite as: 585 U. S. ____ (2018) 7 Opinion of the Court minor matters,” they could both hear and definitively resolve a case for the Tax Court. Id., at 873. In more major matters, they could preside over the hearing, but could not issue the final decision; instead, they were to “prepare proposed findings and an opinion” for a regular Tax Court judge to consider. Ibid. The proceeding chal- lenged in Freytag was a major one, involving $1.5 billion in alleged tax deficiencies. See id., at 871, n. 1. After conducting a 14-week trial, the STJ drafted a proposed decision in favor of the Government. A regular judge then adopted the STJ’s work as the opinion of the Tax Court. See id., at 872. The losing parties argued on appeal that the STJ was not constitutionally appointed. This Court held that the Tax Court’s STJs are officers, not mere employees. Citing Germaine, the Court first found that STJs hold a continuing office established by law. See 501 U.S., at 881. They serve on an ongoing, rather than a “temporary [or] episodic[,] basis”; and their “duties, salary, and means of appointment” are all speci- fied in the Tax Code. Ibid. The Court then considered, as Buckley demands, the “significance” of the “authority” STJs wield. 501 U.S., at 881. In addressing that issue, the Government had argued that STJs are employees, rather than officers, in all cases (like the one at issue) in which they could not “enter a final decision.” Ibid. But the Court thought the Government’s focus on finality “ignore[d] the significance of the duties and discretion that [STJs] possess.” Ibid. Describing the responsibilities involved in presiding over adversarial hearings, the Court said: STJs “take testimony, conduct trials, rule on the admissibility of evidence, and have the power to enforce compliance with discovery orders.” Id., at 881–882. And the Court observed that “[i]n the course of carrying out these important functions, the [STJs] exercise significant discretion.” Id., at 882. That fact meant they were offi- 8 LUCIA v. SEC Opinion of the Court cers, even when their decisions were not final.4 Freytag says everything necessary to decide this case. To begin, the Commission’s ALJs, like the Tax Court’s STJs, hold a continuing office established by law. See id., at 881. Indeed, everyone here—Lucia, the Government, and the amicus—agrees on that point. See Brief for Peti- tioners 21; Brief for United States 17–18, n. 3; Brief for Amicus Curiae 22, n. 7. Far from serving temporarily or episodically, SEC ALJs “receive[ ] a career appointment.” 5 CFR §930.204(a) (2018). And that appointment is to a position created by statute, down to its “duties, salary, and means of appointment.” Freytag, 501 U.S., at 881; see 5 U.S. C. §§556–557, 5372, 3105. Still more, the Commission’s ALJs exercise the same “significant discretion” when carrying out the same “im- portant functions” as STJs do. Freytag, 501 U.S., at 882. Both sets of officials have all the authority needed to ensure fair and orderly adversarial hearings—indeed, nearly all the tools of federal trial judges. See Butz, 438 U.S., at 513; supra, at 2. Consider in order the four spe- cific (if overlapping) powers Freytag mentioned. First, the —————— 4 The Court also provided an alternative basis for viewing the STJs as officers. “Even if the duties of [STJs in major cases] were not as signifi- cant as we . . . have found them,” we stated, “our conclusion would be unchanged.” Freytag, 501 U.S., at 882. That was because the Gov- ernment had conceded that in minor matters, where STJs could enter final decisions, they had enough “independent authority” to count as officers. Ibid. And we thought it made no sense to classify the STJs as officers for some cases and employees for others. See ibid. JUSTICE SOTOMAYOR relies on that back-up rationale in trying to reconcile Freytag with her view that “a prerequisite to officer status is the authority” to issue at least some “final decisions.” Post, at 5 (dissenting opinion). But Freytag has two parts, and its primary analysis explicitly rejects JUSTICE SOTOMAYOR’s theory that final decisionmaking authority is a sine qua non of officer status. See 501 U.S., at 881–882. As she acknowledges, she must expunge that reasoning to make her reading work. See post, at 5 (“That part of the opinion[ ] was unnecessary to the result”). Cite as: 585 U. S. ____ (2018) 9 Opinion of the Court Commission’s ALJs (like the Tax Court’s STJs) “take testimony.” 501 U.S., at 881. More precisely, they “[r]eceiv[e] evidence” and “[e]xamine witnesses” at hear- ings, and may also take pre-hearing depositions. 17 CFR §§201.111(c), 200.14(a)(4); see 5 U.S. C. §556(c)(4). Sec- ond, the ALJs (like STJs) “conduct trials.” 501 U.S., at 882. As detailed earlier, they administer oaths, rule on motions, and generally “regulat[e] the course of ” a hear- ing, as well as the conduct of parties and counsel. §201.111; see §§200.14(a)(1), (a)(7); supra, at 2. Third, the ALJs (like STJs) “rule on the admissibility of evidence.” 501 U.S., at 882; see §201.111(c). They thus critically shape the administrative record (as they also do when issuing document subpoenas). See §201.111(b). And fourth, the ALJs (like STJs) “have the power to enforce compliance with discovery orders.” 501 U.S., at 882. In particular, they may punish all “[c]ontemptuous conduct,” including violations of those orders, by means as severe as excluding the offender from the hearing. See §201.180(a)(1). So point for point—straight from Freytag’s list—the Commission’s ALJs have equivalent duties and powers as STJs in conducting adversarial inquiries. And at the close of those proceedings, ALJs issue deci- sions much like that in Freytag—except with potentially more independent effect. As the Freytag Court recounted, STJs “prepare proposed findings and an opinion” adjudi- cating charges and assessing tax liabilities. 501 U.S., at 873; see supra, at 7. Similarly, the Commission’s ALJs issue decisions containing factual findings, legal conclu- sions, and appropriate remedies. See §201.360(b); supra, at 2. And what happens next reveals that the ALJ can play the more autonomous role. In a major case like Frey- tag, a regular Tax Court judge must always review an STJ’s opinion. And that opinion counts for nothing unless the regular judge adopts it as his own. See 501 U.S., at 873. By contrast, the SEC can decide against reviewing 10 LUCIA v. SEC Opinion of the Court an ALJ decision at all. And when the SEC declines review (and issues an order saying so), the ALJ’s decision itself “becomes final” and is “deemed the action of the Commis- sion.” §201.360(d)(2); 15 U.S. C. §78d–1(c); see supra, at 2. That last-word capacity makes this an a fortiori case: If the Tax Court’s STJs are officers, as Freytag held, then the Commission’s ALJs must be too. The amicus offers up two distinctions to support the opposite conclusion. His main argument relates to “the power to enforce compliance with discovery orders”—the fourth of Freytag’s listed functions. 501 U.S., at 882. The Tax Court’s STJs, he states, had that power “because they had authority to punish contempt” (including discovery violations) through fines or imprisonment. Brief for Ami- cus Curiae 37; see id., at 37, n. 10 (citing 26 U.S. C. §7456(c)). By contrast, he observes, the Commission’s ALJs have less capacious power to sanction misconduct. The amicus’s secondary distinction involves how the Tax Court and Commission, respectively, review the factfind- ing of STJs and ALJs. The Tax Court’s rules state that an STJ’s findings of fact “shall be presumed” correct. Tax Court Rule 183(d). In comparison, the amicus notes, the SEC’s regulations include no such deferential standard. See Brief for Amicus Curiae 10, 38, n. 11. But those distinctions make no difference for officer status. To start with the amicus’s primary point, Freytag referenced only the general “power to enforce compliance with discovery orders,” not any particular method of doing so. 501 U.S., at 882. True enough, the power to toss malefactors in jail is an especially muscular means of enforcement—the nuclear option of compliance tools. But just as armies can often enforce their will through conven- tional weapons, so too can administrative judges. As noted earlier, the Commission’s ALJs can respond to discovery violations and other contemptuous conduct by excluding the wrongdoer (whether party or lawyer) from Cite as: 585 U. S. ____ (2018) 11 Opinion of the Court the proceedings—a powerful disincentive to resist a court order. See §201.180(a)(1)(i); supra, at 9. Similarly, if the offender is an attorney, the ALJ can “[s]ummarily sus- pend” him from representing his client—not something the typical lawyer wants to invite. §201.180(a)(1)(ii). And finally, a judge who will, in the end, issue an opinion complete with factual findings, legal conclusions, and sanctions has substantial informal power to ensure the parties stay in line. Contrary to the amicus’s view, all that is enough to satisfy Freytag’s fourth item (even sup- posing, which we do not decide, that each of those items is necessary for someone conducting adversarial hearings to count as an officer). And the amicus’s standard-of-review distinction fares just as badly. The Freytag Court never suggested that the deference given to STJs’ factual findings mattered to its Appointments Clause analysis. Indeed, the relevant part of Freytag did not so much as mention the subject (even though it came up at oral argument, see Tr. of Oral Arg. 33–41). And anyway, the Commission often accords a similar deference to its ALJs, even if not by regulation. The Commission has repeatedly stated, as it did below, that its ALJs are in the “best position to make findings of fact” and “resolve any conflicts in the evidence.” App. to Pet. for Cert. 241a (quoting In re Nasdaq Stock Market, LLC, SEC Release No. 57741 (Apr. 30, 2008)). (That was why the SEC insisted that Judge Elliot make factual findings on all four allegations of Lucia’s deception. See supra, at 3.) And when factfinding derives from credibility judgments, as it frequently does, acceptance is near- automatic. Recognizing ALJs’ “personal experience with the witnesses,” the Commission adopts their “credibility finding[s] absent overwhelming evidence to the contrary.” App. to Pet. for Cert. 241a; In re Clawson, SEC Release No. 48143 (July 9, 2003). That practice erases the consti- tutional line the amicus proposes to draw. 12 LUCIA v. SEC Opinion of the Court The only issue left is remedial. For all the reasons we have given, and all those Freytag gave before, the Com- mission’s ALJs are “Officers of the United States,” subject to the Appointments Clause. And as noted earlier, Judge Elliot heard and decided Lucia’s case without the kind of appointment the Clause requires. See supra, at 5. This Court has held that “one who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case” is entitled to relief. Ryder v. United States, 515 U.S. 177, 182–183 (1995). Lucia made just such a timely challenge: He contested the validity of Judge Elliot’s appointment before the Commission, and continued pressing that claim in the Court of Appeals and this Court. So what relief follows? This Court has also held that the “appropriate” remedy for an adjudication tainted with an appointments violation is a new “hearing before a properly appointed” official. Id., at 183, 188. And we add today one thing more. That official cannot be Judge Elliot, even if he has by now received (or receives sometime in the future) a constitutional appointment. Judge Elliot has already both heard Lucia’s case and issued an initial decision on the merits. He cannot be expected to consider the matter as though he had not adjudicated it before.5 To cure the constitutional error, —————— 5 JUSTICE BREYER disagrees with our decision to wrest further pro- ceedings from Judge Elliot, arguing that “[f]or him to preside once again would not violate the structural purposes [of] the Appointments Clause.” Post, at 13 (opinion concurring in judgment in part and dissenting in part). But our Appointments Clause remedies are de- signed not only to advance those purposes directly, but also to create “[ ]incentive[s] to raise Appointments Clause challenges.” Ryder v. United States, 515 U.S. 177, 183 (1995). We best accomplish that goal by providing a successful litigant with a hearing before a new judge. That is especially so because (as JUSTICE BREYER points out) the old judge would have no reason to think he did anything wrong on the merits, see post, at 13—and so could be expected to reach all the same judgments. But we do not hold that a new officer is required for every Cite as: 585 U. S. ____ (2018) 13 Opinion of the Court another ALJ (or the Commission itself) must hold the new hearing to which Lucia is entitled.6 We accordingly reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. —————— Appointments Clause violation. As JUSTICE BREYER suggests, we can give that remedy here because other ALJs (and the Commission) are available to hear this case on remand. See ibid. If instead the Ap- pointments Clause problem is with the Commission itself, so that there is no substitute decisionmaker, the rule of necessity would presumably kick in and allow the Commission to do the rehearing. See FTC v. Cement Institute, 333 U.S. 683, 700–703 (1948); 3 K. Davis, Adminis- trative Law Treatise §19.9 (2d ed. 1980). 6 While this case was on judicial review, the SEC issued an order “ratif[ying]” the prior appointments of its ALJs. Order (Nov. 30, 2017), online at https://www.sec.gov/litigation/opinions/2017/33-10440.pdf (as last visited June 18, 2018). Lucia argues that the order is invalid. See Brief for Petitioners 50–56. We see no reason to address that issue. The Commission has not suggested that it intends to assign Lucia’s case on remand to an ALJ whose claim to authority rests on the ratifi- cation order. The SEC may decide to conduct Lucia’s rehearing itself. Or it may assign the hearing to an ALJ who has received a constitu- tional appointment independent of the ratification. Cite as: 585 U. S. ____ (2018) 1 THOMAS, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 17–130 _________________ RAYMOND J. LUCIA, ET AL., PETITIONERS v.

The Appointments Clause of the Constitution lays out the permissible methods of appointing “Officers of the United States,” a class of government officials distinct from mere employees. Art. II, cl. 2. This case requires us to decide whether administrative law judges (ALJs) of the Securities and Exchange Commission (SEC or Com- mission) qualify as such “Officers.” In keeping with Frey- we hold that they do. I The SEC has statutory authority to enforce the nation’s securities laws. One way it can do so is by instituting an administrative proceeding against an alleged wrongdoer. By law, the Commission may itself preside over such a proceeding. See But the Com- mission also may, and typically does, delegate that task to an ALJ. See ; 15 U.S. C. The SEC cur- rently has five ALJs. Other staff members, rather than the Commission proper, selected them all. See App. to Pet. for Cert. 295a–297a. 2 LUCIA v. SEC Opinion of the Court An ALJ assigned to hear an SEC enforcement action has extensive powers—the “authority to do all things neces- sary and appropriate to discharge his or her duties” and ensure a “fair and orderly” adversarial proceeding. 200.14(a). Those powers “include, but are not limited to,” supervising discovery; issuing, revoking, or modifying subpoenas; deciding motions; ruling on the admissibility of evidence; administering oaths; hearing and examining witnesses; generally “[r]egulating the course of ” the proceeding and the “conduct of the parties and their counsel”; and imposing sanctions for “[c]ontemptuous conduct” or violations of procedural re- quirements.180; see230. As that list suggests, an SEC ALJ exercises authority “comparable to” that of a federal district judge conducting a bench trial. (1978). After a hearing ends, the ALJ issues an “initial deci- sion.” That decision must set out “findings and conclusions” about all “material issues of fact [and] law”; it also must include the “appropriate order, sanction, relief, or denial thereof.” The Commission can then review the ALJ’s decision, either upon request or sua sponte. See But if it opts against review, the Commission “issue[s] an order that the [ALJ’s] decision has become final.” At that point, the initial decision is “deemed the action of the Commis- sion.” This case began when the SEC instituted an adminis- trative proceeding against petitioner Raymond Lucia and his investment company. Lucia marketed a retirement savings strategy called “Buckets of Money.” In the SEC’s view, Lucia used misleading slideshow presentations to deceive prospective clients. The SEC charged Lucia under the Investment Advisers Act, et seq., and assigned ALJ Cameron Elliot to adjudicate the case. After nine Cite as: 585 U. S. (8) 3 Opinion of the Court days of testimony and argument, Judge Elliot issued an initial decision concluding that Lucia had violated the Act and imposing sanctions, including civil penalties of $300,000 and a lifetime bar from the investment industry. In his decision, Judge Elliot made factual findings about only one of the four ways the SEC thought Lucia’s slideshow misled investors. The Commission thus re- manded for factfinding on the other three claims, explain- ing that an ALJ’s “personal experience with the witnesses” places him “in the best position to make findings of fact” and “resolve any conflicts in the evidence.” App. to Pet. for Cert. 241a. Judge Elliot then made additional findings of deception and issued a revised initial decision, with the same sanctions. See 18a. On appeal to the SEC, Lucia argued that the adminis- trative proceeding was invalid because Judge Elliot had not been constitutionally appointed. According to Lucia, the Commission’s ALJs are “Officers of the United States” and thus subject to the Appointments Clause. Under that Clause, Lucia noted, only the President, “Courts of Law,” or “Heads of Departments” can appoint “Officers.” See Art. II, cl. 2. And none of those actors had made Judge Elliot an ALJ. To be sure, the Commission itself counts as a “Head[ ] of Department[ ].” ; see Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477, 511– (0). But the Commission had left the task of appointing ALJs, including Judge Elliot, to SEC staff members. See As a result, Lucia contended, Judge Elliot lacked constitutional authority to do his job. The Commission rejected Lucia’s argument. It held that the SEC’s ALJs are not “Officers of the United States.” Instead, they are “mere employees”—officials with lesser responsibilities who fall outside the Appointments Clause’s ambit. App. to Pet. for Cert. 87a. The Commis- sion reasoned that its ALJs do not “exercise significant 4 LUCIA v. SEC Opinion of the Court authority independent of [its own] supervision.” at 88a. Because that is so (said the SEC), they need no special, high-level appointment. See at 86a. Lucia’s claim fared no better in the Court of Appeals for the D. C. Circuit. A panel of that court seconded the Commission’s view that SEC ALJs are employees rather than officers, and so are not subject to the Appointments Clause. See Lucia then petitioned for rehearing en banc. The Court of Appeals granted that request and heard argument in the case. But the ten members of the en banc court divided evenly, resulting in a per curiam order denying Lucia’s claim. See That decision conflicted with one from the Court of Appeals for the Tenth Circuit. See Lucia asked us to resolve the split by deciding whether the Commission’s ALJs are “Officers of the United States within the meaning of the Appointments Clause.” Pet. for Cert. i. Up to that point, the Federal Government (as represented by the Department of Justice) had defended the Commission’s position that SEC ALJs are employees, not officers. But in responding to Lucia’s petition, the Government switched sides.1 So when we granted the petition, 583 U. S. (8), we also appointed an amicus curiae to defend the judgment below.2 We now reverse. —————— 1 In the same certiorari-stage brief, the Government asked us to add a second question presented: whether the statutory restrictions on removing the Commission’s ALJs are constitutional. See Brief in Response 21. When we granted certiorari, we chose not to take that step. See 583 U. S. (8). The Government’s merits brief now asks us again to address the removal issue. See Brief for United States 39–55. We once more decline. No court has addressed that question, and we ordinarily await “thorough lower court opinions to guide our analysis of the merits.” 2 We appointed Anton Metlitsky to brief and argue the case, 583 U. S. (8), and he has ably discharged his responsibilities. Cite as: 585 U. S. (8) 5 Opinion of the Court II The sole question here is whether the Commission’s ALJs are “Officers of the United States” or simply employ- ees of the Federal Government. The Appointments Clause prescribes the exclusive means of appointing “Officers.” Only the President, a court of law, or a head of depart- ment can do See Art. II, cl. 2.3 And as all parties agree, none of those actors appointed Judge Elliot before he heard Lucia’s case; instead, SEC staff members gave him an ALJ slot. See Brief for Petitioners 15; Brief for United States 38; Brief for Court-Appointed Amicus Cu- riae 21. So if the Commission’s ALJs are constitutional officers, Lucia raises a valid Appointments Clause claim. The only way to defeat his position is to show that those ALJs are not officers at all, but instead non-officer em- ployees—part of the broad swath of “lesser functionaries” in the Government’s workforce. Buckley v. Valeo, 424 U.S. 1, 126, n. 162 (1976) (per curiam). For if that is true, the Appointments Clause cares not a whit about who named them. See United 510 (1879). Two decisions set out this Court’s basic framework for distinguishing between officers and employees. Germaine held that “civil surgeons” (doctors hired to perform various physical exams) were mere employees because their duties were “occasional or temporary” rather than “continuing —————— 3 That statement elides a distinction, not at issue here, between “principal” and “inferior” officers. See Edmond v. United States, 520 U.S. 651, 659–660 (1997). Only the President, with the advice and consent of the Senate, can appoint a principal officer; but Congress (instead of relying on that method) may authorize the President alone, a court, or a department head to appoint an inferior officer. See Both the Government and Lucia view the SEC’s ALJs as inferior officers and acknowledge that the Commission, as a head of depart- ment, can constitutionally appoint them. See Brief for United States 38; Brief for Petitioners 50–51. 6 LUCIA v. SEC Opinion of the Court and permanent.” –512. Stressing “ideas of tenure [and] duration,” the Court there made clear that an individual must occupy a “continuing” position established by law to qualify as an officer. Buckley then set out another requirement, central to this case. It de- termined that members of a federal commission were officers only after finding that they “exercis[ed] significant authority pursuant to the laws of the United States.” 424 U.S., 26. The inquiry thus focused on the extent of power an individual wields in carrying out his assigned Both the amicus and the Government urge us to elabo- rate on Buckley’s “significant authority” test, but another of our precedents makes that project unnecessary. The standard is no doubt framed in general terms, tempting advocates to add whatever glosses best suit their argu- ments. See Brief for Amicus Curiae 14 (contending that an individual wields “significant authority” when he has “(i) the power to bind the government or private parties (ii) in her own name rather than in the name of a superior officer”); Reply Brief for United States 2 (countering that an individual wields that authority when he has “the power to bind the government or third parties on signifi- cant matters” or to undertake other “important and dis- tinctively sovereign functions”). And maybe one day we will see a need to refine or enhance the test Buckley set out so concisely. But that day is not this one, because in Frey, we applied the unadorned “significant authority” test to adjudicative officials who are near-carbon copies of the Commission’s ALJs. As we now explain, our analysis there (sans any more detailed legal criteria) necessarily decides this case. The officials at issue in were the “special trial judges” (STJs) of the United States Tax Court. The au- thority of those judges depended on the significance of the tax dispute before them. In “comparatively narrow and Cite as: 585 U. S. (8) 7 Opinion of the Court minor matters,” they could both hear and definitively resolve a case for the Tax Court. In more major matters, they could preside over the hearing, but could not issue the final decision; instead, they were to “prepare proposed findings and an opinion” for a regular Tax Court judge to consider. The proceeding chal- lenged in was a major one, involving $1.5 billion in alleged tax deficiencies. See After conducting a 14-week trial, the STJ drafted a proposed decision in favor of the Government. A regular judge then adopted the STJ’s work as the opinion of the Tax Court. See The losing parties argued on appeal that the STJ was not constitutionally appointed. This Court held that the Tax Court’s STJs are officers, not mere employees. Citing Germaine, the Court first found that STJs hold a continuing office established by law. See They serve on an ongoing, rather than a “temporary [or] episodic[,] basis”; and their “duties, salary, and means of appointment” are all speci- fied in the Tax Code. The Court then considered, as Buckley demands, the “significance” of the “authority” STJs In addressing that issue, the Government had argued that STJs are employees, rather than officers, in all cases (like the one at issue) in which they could not “enter a final decision.” But the Court thought the Government’s focus on finality “ignore[d] the significance of the duties and discretion that [STJs] possess.” Describing the responsibilities involved in presiding over adversarial hearings, the Court said: STJs “take testimony, conduct trials, rule on the admissibility of evidence, and have the power to enforce compliance with discovery orders.” at 881–882. And the Court observed that “[i]n the course of carrying out these important functions, the [STJs] exercise significant discretion.” That fact meant they were offi- 8 LUCIA v. SEC Opinion of the Court cers, even when their decisions were not final.4 says everything necessary to decide this case. To begin, the Commission’s ALJs, like the Tax Court’s STJs, hold a continuing office established by law. See at 881. Indeed, everyone here—Lucia, the Government, and the amicus—agrees on that point. See Brief for Peti- tioners 21; Brief for United States 17–18, n. 3; Brief for Amicus Curiae 22, n. 7. Far from serving temporarily or episodically, SEC ALJs “receive[ ] a career appointment.” (a) (8). And that appointment is to a position created by statute, down to its “duties, salary, and means of appointment.” ; see 5 U.S. C. 5372, 3105. Still more, the Commission’s ALJs exercise the same “significant discretion” when carrying out the same “im- portant functions” as STJs do. 501 U.S., Both sets of officials have all the authority needed to ensure fair and orderly adversarial hearings—indeed, nearly all the tools of federal trial judges. See Butz, 438 U.S., at ; Consider in order the four spe- cific (if overlapping) powers mentioned. First, the —————— 4 The Court also provided an alternative basis for viewing the STJs as officers. “Even if the duties of [STJs in major cases] were not as signifi- cant as we have found them,” we stated, “our conclusion would be unchanged.” 501 U.S., That was because the Gov- ernment had conceded that in minor matters, where STJs could enter final decisions, they had enough “independent authority” to count as officers. And we thought it made no sense to classify the STJs as officers for some cases and employees for others. See JUSTICE SOTOMAYOR relies on that back-up rationale in trying to reconcile with her view that “a prerequisite to officer status is the authority” to issue at least some “final decisions.” Post, (dissenting opinion). But has two parts, and its primary analysis explicitly rejects JUSTICE SOTOMAYOR’s theory that final decisionmaking authority is a sine qua non of officer status. See –882. As she acknowledges, she must expunge that reasoning to make her reading work. See post, (“That part of the opinion[ ] was unnecessary to the result”). Cite as: 585 U. S. (8) 9 Opinion of the Court Commission’s ALJs (like the Tax Court’s STJs) “take testimony.” More precisely, they “[r]eceiv[e] evidence” and “[e]xamine witnesses” at hear- ings, and may also take pre-hearing depositions. 17 CFR §§.111(c), 200.14(a)(4); see 5 U.S. C. Sec- ond, the ALJs (like STJs) “conduct trials.” 501 U.S., at 882. As detailed earlier, they administer oaths, rule on motions, and generally “regulat[e] the course of ” a hear- ing, as well as the conduct of parties and counsel. §.111; see (a)(7); Third, the ALJs (like STJs) “rule on the admissibility of evidence.” 501 U.S., ; see §.111(c). They thus critically shape the administrative record (as they also do when issuing document subpoenas). See §.111(b). And fourth, the ALJs (like STJs) “have the power to enforce compliance with discovery orders.” 501 U.S., In particular, they may punish all “[c]ontemptuous conduct,” including violations of those orders, by means as severe as excluding the offender from the hearing. See §.180(a)(1). So point for point—straight from ’s list—the Commission’s ALJs have equivalent duties and powers as STJs in conducting adversarial inquiries. And at the close of those proceedings, ALJs issue deci- sions much like that in —except with potentially more independent effect. As the Court recounted, STJs “prepare proposed findings and an opinion” adjudi- cating charges and assessing tax liabilities. 501 U.S., at 873; see Similarly, the Commission’s ALJs issue decisions containing factual findings, legal conclu- sions, and appropriate remedies. See §.360(b); And what happens next reveals that the ALJ can play the more autonomous role. In a major case like Frey- tag, a regular Tax Court judge must always review an STJ’s opinion. And that opinion counts for nothing unless the regular judge adopts it as his own. See 501 U.S., at 873. By contrast, the SEC can decide against reviewing 10 LUCIA v. SEC Opinion of the Court an ALJ decision at all. And when the SEC declines review (and issues an order saying so), the ALJ’s decision itself “becomes final” and is “deemed the action of the Commis- sion.” §.360(d)(2); 15 U.S. C. see at 2. That last-word capacity makes this an a fortiori case: If the Tax Court’s STJs are officers, as held, then the Commission’s ALJs must be too. The amicus offers up two distinctions to support the opposite conclusion. His main argument relates to “the power to enforce compliance with discovery orders”—the fourth of ’s listed 501 U.S., The Tax Court’s STJs, he states, had that power “because they had authority to punish contempt” (including discovery violations) through fines or imprisonment. Brief for Ami- cus Curiae 37; see n. 10 (citing 26 U.S. C. By contrast, he observes, the Commission’s ALJs have less capacious power to sanction misconduct. The amicus’s secondary distinction involves how the Tax Court and Commission, respectively, review the factfind- ing of STJs and ALJs. The Tax Court’s rules state that an STJ’s findings of fact “shall be presumed” correct. Tax Court Rule (d). In comparison, the amicus notes, the SEC’s regulations include no such deferential standard. See Brief for Amicus Curiae 10, 38, n. 11. But those distinctions make no difference for officer status. To start with the amicus’s primary point, referenced only the general “power to enforce compliance with discovery orders,” not any particular method of doing 501 U.S., True enough, the power to toss malefactors in jail is an especially muscular means of enforcement—the nuclear option of compliance tools. But just as armies can often enforce their will through conven- tional weapons, so too can administrative judges. As noted earlier, the Commission’s ALJs can respond to discovery violations and other contemptuous conduct by excluding the wrongdoer (whether party or lawyer) from Cite as: 585 U. S. (8) 11 Opinion of the Court the proceedings—a powerful disincentive to resist a court order. See §.180(a)(1)(i); Similarly, if the offender is an attorney, the ALJ can “[s]ummarily sus- pend” him from representing his client—not something the typical lawyer wants to invite. §.180(a)(1)(ii). And finally, a judge who will, in the end, issue an opinion complete with factual findings, legal conclusions, and sanctions has substantial informal power to ensure the parties stay in line. Contrary to the amicus’s view, all that is enough to satisfy ’s fourth item (even sup- posing, which we do not decide, that each of those items is necessary for someone conducting adversarial hearings to count as an officer). And the amicus’s standard-of-review distinction fares just as badly. The Court never suggested that the deference given to STJs’ factual findings mattered to its Appointments Clause analysis. Indeed, the relevant part of did not so much as mention the subject (even though it came up at oral argument, see Tr. of Oral Arg. 33–41). And anyway, the Commission often accords a similar deference to its ALJs, even if not by regulation. The Commission has repeatedly stated, as it did below, that its ALJs are in the “best position to make findings of fact” and “resolve any conflicts in the evidence.” App. to Pet. for Cert. 241a (quoting In re Nasdaq Stock Market, LLC, SEC Release No. 57741 (Apr. 30, 2008)). (That was why the SEC insisted that Judge Elliot make factual findings on all four allegations of Lucia’s deception. See) And when factfinding derives from credibility judgments, as it frequently does, acceptance is near- automatic. Recognizing ALJs’ “personal experience with the witnesses,” the Commission adopts their “credibility finding[s] absent overwhelming evidence to the contrary.” App. to Pet. for Cert. 241a; In re Clawson, SEC Release No. 48143 (July 9, 2003). That practice erases the consti- tutional line the amicus proposes to draw. 12 LUCIA v. SEC Opinion of the Court The only issue left is remedial. For all the reasons we have given, and all those gave before, the Com- mission’s ALJs are “Officers of the United States,” subject to the Appointments Clause. And as noted earlier, Judge Elliot heard and decided Lucia’s case without the kind of appointment the Clause requires. See This Court has held that “one who makes a timely challenge to the constitutional validity of the appointment of an officer who adjudicates his case” is entitled to relief. Ryder v. United States, Lucia made just such a timely challenge: He contested the validity of Judge Elliot’s appointment before the Commission, and continued pressing that claim in the Court of Appeals and this Court. So what relief follows? This Court has also held that the “appropriate” remedy for an adjudication tainted with an appointments violation is a new “hearing before a properly appointed” official. 83, 188. And we add today one thing more. That official cannot be Judge Elliot, even if he has by now received (or receives sometime in the future) a constitutional appointment. Judge Elliot has already both heard Lucia’s case and issued an initial decision on the merits. He cannot be expected to consider the matter as though he had not adjudicated it before.5 To cure the constitutional error, —————— 5 JUSTICE BREYER disagrees with our decision to wrest further pro- ceedings from Judge Elliot, arguing that “[f]or him to preside once again would not violate the structural purposes [of] the Appointments Clause.” Post, 3 (opinion concurring in judgment in part and dissenting in part). But our Appointments Clause remedies are de- signed not only to advance those purposes directly, but also to create “[ ]incentive[s] to raise Appointments Clause challenges.” Ryder v. United States, We best accomplish that goal by providing a successful litigant with a hearing before a new judge. That is especially so because (as JUSTICE BREYER points out) the old judge would have no reason to think he did anything wrong on the merits, see post, 3—and so could be expected to reach all the same judgments. But we do not hold that a new officer is required for every Cite as: 585 U. S. (8) 13 Opinion of the Court another ALJ (or the Commission itself) must hold the new hearing to which Lucia is entitled.6 We accordingly reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. It is so ordered. —————— Appointments Clause violation. As JUSTICE BREYER suggests, we can give that remedy here because other ALJs (and the Commission) are available to hear this case on remand. See If instead the Ap- pointments Clause problem is with the Commission itself, so that there is no substitute decisionmaker, the rule of necessity would presumably kick in and allow the Commission to do the rehearing. See FTC v. Cement Institute, ; 3 K. Davis, Adminis- trative Law Treatise (2d ed. 1980). 6 While this case was on judicial review, the SEC issued an order “ratif[ying]” the prior appointments of its ALJs. Order online at https://www.sec.gov/litigation/opinions//33-10440.pdf (as last visited June 18, 8). Lucia argues that the order is invalid. See Brief for Petitioners 50–56. We see no reason to address that issue. The Commission has not suggested that it intends to assign Lucia’s case on remand to an ALJ whose claim to authority rests on the ratifi- cation order. The SEC may decide to conduct Lucia’s rehearing itself. Or it may assign the hearing to an ALJ who has received a constitu- tional appointment independent of the ratification. Cite as: 585 U. S. (8) 1 THOMAS, J., concurring SUPREME COURT OF THE UNITED STATES No. 17–130 RAYMOND J. LUCIA, ET AL., PETITIONERS v.

Justice Thomas

concurring

Lucia v. SEC

2018-06-21

https://www.courtlistener.com/opinion/4509420/lucia-v-sec/

https://www.courtlistener.com/api/rest/v3/clusters/4509420/

2017-069

I agree with the Court that this case is indistinguishable from Freytag v. Commissioner, 501 U.S. 868 (1991). If the special trial judges in Freytag were “Officers of the United States,” Art. II, §2, cl. 2, then so are the administrative law judges of the Securities and Exchange Commission. Moving forward, however, this Court will not be able to decide every Appointments Clause case by comparing it to Freytag. And, as the Court acknowledges, our precedents in this area do not provide much guidance. See ante, at 6. While precedents like Freytag discuss what is sufficient to make someone an officer of the United States, our prece- dents have never clearly defined what is necessary. I would resolve that question based on the original public meaning of “Officers of the United States.” To the Found- ers, this term encompassed all federal civil officials “ ‘with responsibility for an ongoing statutory duty.’ ” NLRB v. SW General, Inc., 580 U. S. ___, ___ (2017) (THOMAS, J., concurring) (slip op., at 4); Mascott, Who Are “Officers of the United States”? 70 Stan. L. Rev. 443, 564 (2018) (Mascott).1 —————— 1 I address only the dividing line between “Officers of the United States,” who are subject to the Appointments Clause, and nonofficer 2 LUCIA v. SEC THOMAS, J., concurring The Appointments Clause provides the exclusive process for appointing “Officers of the United States.” See SW General, supra, at ___ (opinion of THOMAS, J.) (slip op., at 1). While principal officers must be nominated by the President and confirmed by the Senate, Congress can authorize the appointment of “inferior Officers” by “the President alone,” “the Courts of Law,” or “the Heads of Departments.” Art. II, §2, cl. 2. This alternative process for appointing inferior officers strikes a balance between efficiency and accountability. Given the sheer number of inferior officers, it would be too burdensome to require each of them to run the gauntlet of Senate confirmation. See United States v. Germaine, 99 U.S. 508, 509–510 (1879); 2 Records of the Federal Con- vention of 1787, pp. 627–628 (M. Farrand ed. 1911). But, by specifying only a limited number of actors who can appoint inferior officers without Senate confirmation, the Appointments Clause maintains clear lines of accountabil- ity—encouraging good appointments and giving the public someone to blame for bad ones. See The Federalist No. 76, p. 455 (C. Rossiter ed. 1961) (A. Hamilton); Wilson, Lec- tures on Law: Government, in 1 The Works of James Wilson 343, 359–361 (J. Andrews ed., 1896). The Founders likely understood the term “Officers of the United States” to encompass all federal civil officials who perform an ongoing, statutory duty—no matter how im- portant or significant the duty. See Mascott 454. “Officers of the United States” was probably not a term of art that the Constitution used to signify some special type of offi- cial. Based on how the Founders used it and similar terms, the phrase “of the United States” was merely a —————— employees, who are not. I express no view on the meaning of “Office” or “Officer” in any other provision of the Constitution, or the difference between principal officers and inferior officers under the Appointments Clause. Cite as: 585 U. S. ____ (2018) 3 THOMAS, J., concurring synonym for “federal,” and the word “Office[r]” carried its ordinary meaning. See id., at 471–479. The ordinary meaning of “officer” was anyone who performed a continu- ous public duty. See id., at 484–507; e.g., United States v. Maurice, 26 F. Cas. 1211, 1214 (No. 15,747) (CC Va. 1823) (defining officer as someone in “ ‘a public charge or em- ployment’ ” who performed a “continuing” duty); 8 Annals of Cong. 2304–2305 (1799) (statement of Rep. Harper) (explaining that the word officer “is derived from the Latin word officium” and “includes all persons holding posts which require the performance of some public duty”). For federal officers, that duty is “established by Law”—that is, by statute. Art. II, §2, cl. 2. The Founders considered individuals to be officers even if they performed only ministerial statutory duties—including recordkeepers, clerks, and tidewaiters (individuals who watched goods land at a customhouse). See Mascott 484–507. Early congressional practice reflected this understanding. With exceptions not relevant here,2 Congress required all fed- eral officials with ongoing statutory duties to be appointed in compliance with the Appointments Clause. See id., at 507–545. Applying the original meaning here, the administrative law judges of the Securities and Exchange Commission easily qualify as “Officers of the United States.” These judges exercise many of the agency’s statutory duties, including issuing initial decisions in adversarial proceed- ings. See 15 U.S. C. §78d–1(a); 17 CFR §§200.14, 200.30– 9 (2017). As explained, the importance or significance of these statutory duties is irrelevant. All that matters is that the judges are continuously responsible for perform- —————— 2 The First Congress exempted certain officials with ongoing statu- tory duties, such as deputies and military officers, from the requirements of the Appointments Clause. But these narrow exceptions do not disprove the rule, as background principles of founding-era law explain each of them. See Mascott 480–483, 515–530. 4 LUCIA v. SEC THOMAS, J., concurring ing them. In short, the administrative law judges of the Securities Exchange Commission are “Officers of the United States” under the original meaning of the Appointments Clause. They have “ ‘responsibility for an ongoing statutory duty,’ ” which is sufficient to resolve this case. SW General, 580 U. S., at ___ (opinion of THOMAS, J.) (slip op., at 4). Be- cause the Court reaches the same conclusion by correctly applying Freytag, I join its opinion. Cite as: 585 U. S. ____ (2018) 1 BREYER, J., concurring Opinioninofpart and, dissenting BREYER J. in part SUPREME COURT OF THE UNITED STATES _________________ No. 17–130 _________________ RAYMOND J. LUCIA, ET AL., PETITIONERS v. SECURITIES AND EXCHANGE COMMISSION ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT [June 21, 2018] JUSTICE BREYER, with whom JUSTICE GINSBURG and JUSTICE SOTOMAYOR join as to Part III, concurring in the judgment in part and dissenting in part. I agree with the Court that the Securities and Exchange Commission did not properly appoint the Administrative Law Judge who presided over petitioner Lucia’s hearing. But I disagree with the majority in respect to two matters. First, I would rest our conclusion upon statutory, not constitutional, grounds. I believe it important to do so because I cannot answer the constitutional question that the majority answers without knowing the answer to a different, embedded constitutional question, which the Solicitor General urged us to answer in this case: the constitutionality of the statutory “for cause” removal protections that Congress provided for administrative law judges. Cf. Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477 (2010). Second, I disagree with the Court in respect to the proper remedy. I The relevant statute here is the Administrative Proce- dure Act. That Act governs the appointment of adminis- trative law judges. It provides (as it has, in substance, since its enactment in 1946) that “[e]ach agency shall appoint as many administrative law judges as are neces- 2 LUCIA v. SEC BREYER, J., concurring Opinioninofpart and, dissenting BREYER J. in part sary for” hearings governed by the Administrative Proce- dure Act. 5 U.S. C. §3105; see also Administrative Proce- dure Act, §11, 60 Stat. 244 (original version, which refers to “examiners” as administrative law judges were then called). In the case of the Securities and Exchange Com- mission, the relevant “agency” is the Commission itself. But the Commission did not appoint the Administrative Law Judge who presided over Lucia’s hearing. Rather, the Commission’s staff appointed that Administrative Law Judge, without the approval of the Commissioners them- selves. See ante, at 1; App. to Pet. for Cert. 298a–299a. I do not believe that the Administrative Procedure Act permits the Commission to delegate its power to appoint its administrative law judges to its staff. We have held that, for purposes of the Constitution’s Appointments Clause, the Commission itself is a “ ‘Hea[d]’ ” of a “ ‘De- partmen[t].’ ” Free Enterprise Fund, supra, at 512–513. Thus, reading the statute as referring to the Commission itself, and not to its staff, avoids a difficult constitutional question, namely, the very question that the Court an- swers today: whether the Commission’s administrative law judges are constitutional “inferior Officers” whose appointment Congress may vest only in the President, the “Courts of Law,” or the “Heads of Departments.” Art. II, §2, cl. 2; see United States v. Jin Fuey Moy, 241 U.S. 394, 401 (1916) (“A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitu- tional but also grave doubts upon that score”). I have found no other statutory provision that would permit the Commission to delegate the power to appoint its administrative law judges to its staff. The statute establishing and governing the Commission does allow the Commission to “delegate, by published order or rule, any of its functions to a division of the Commission, an indi- vidual Commissioner, an administrative law judge, or an employee or employee board.” 15 U.S. C. §78d–1(a). But Cite as: 585 U. S. ____ (2018) 3 BREYER, J., concurring Opinioninofpart and, dissenting BREYER J. in part this provision requires a “published order or rule,” and the Commission here published no relevant delegating order or rule. Rather, Lucia discovered the Commission’s ap- pointment system for administrative law judges only when the Commission’s enforcement division staff filed an affi- davit in this case describing that staff-based system. See App. to Pet. for Cert. 295a–299a. Regardless, the same constitutional-avoidance reasons that should inform our construction of the Administrative Procedure Act should also lead us to interpret the Commission’s general delega- tion authority as excluding the power to delegate to staff the authority to appoint its administrative law judges, so as to avoid the constitutional question the Court reaches in this case. See Jin Fuey Moy, supra, at 401. The analysis may differ for other agencies that employ administrative law judges. Each agency’s governing stat- ute is different, and some, unlike the Commission’s, may allow the delegation of duties without a published order or rule. See, e.g., 42 U.S. C. §902(a)(7) (applicable to the Social Security Administration). Similarly, other agencies’ administrative law judges perform distinct functions, and their means of appointment may therefore not raise the constitutional questions that inform my reading of the relevant statutes here. The upshot, in my view, is that for statutory, not consti- tutional, reasons, the Commission did not lawfully appoint the Administrative Law Judge here at issue. And this Court should decide no more than that. II A The reason why it is important to go no further arises from the holding in a case this Court decided eight years ago, Free Enterprise Fund, supra. The case concerned statutory provisions protecting members of the Public Company Accounting Oversight Board from removal 4 LUCIA v. SEC BREYER, J., concurring Opinioninofpart and, dissenting BREYER J. in part without cause. The Court held in that case that the Exec- utive Vesting Clause of the Constitution, Art. II, §1 (“[t]he executive Power shall be vested in a President of the United States of America”), forbade Congress from provid- ing members of the Board with “multilevel protection from removal” by the President. Free Enterprise Fund, 561 U.S., at 484; see id., at 514 (“Congress cannot limit the President’s authority” by providing “two levels of protec- tion from removal for those who . . . exercise significant executive power”). But see id., at 514–549 (BREYER, J., dissenting). Because, in the Court’s view, the relevant statutes (1) granted the Securities and Exchange Commis- sioners protection from removal without cause, (2) gave the Commissioners sole authority to remove Board mem- bers, and (3) protected Board members from removal without cause, the statutes provided Board members with two levels of protection from removal and consequently violated the Constitution. Id., at 495–498. In addressing the constitutionality of the Board mem- bers’ removal protections, the Court emphasized that the Board members were “executive officers”—more specifically, “inferior officers” for purposes of the Appointments Clause. E.g., id., at 492–495, 504–505. The significance of that fact to the Court’s analysis is not entirely clear. The Court said: “The parties here concede that Board members are executive ‘Officers’, as that term is used in the Consti- tution. We do not decide the status of other Govern- ment employees, nor do we decide whether ‘lesser functionaries subordinate to officers of the United States’ must be subject to the same sort of control as those who exercise ‘significant authority pursuant to the laws.’ ” Id., at 506 (quoting Buckley v. Valeo, 424 U.S. 1, 126, and n. 162 (1976) (per curiam); citations omitted). Cite as: 585 U. S. ____ (2018) 5 BREYER, J., concurring Opinioninofpart and, dissenting BREYER J. in part Thus, the Court seemed not only to limit its holding to the Board members themselves, but also to suggest that Gov- ernment employees who were not officers would be distin- guishable from the Board members on that ground alone. For present purposes, however, the implications of Free Enterprise Fund’s technical-sounding holding about “mul- tilevel protection from removal” remain potentially dra- matic. 561 U.S., at 484. The same statute, the Adminis- trative Procedure Act, that provides that the “agency” will appoint its administrative law judges also protects the administrative law judges from removal without cause. In particular, the statute says that an “action may be taken against an administrative law judge appointed under section 3105 of this title by the agency in which the administrative law judge is em- ployed only for good cause established and determined by the Merit Systems Protection Board on the record after opportunity for hearing before the Board.” 5 U.S. C. §7521(a). As with appointments, this provision constituted an im- portant part of the Administrative Procedure Act when it was originally enacted in 1946. See §11, 60 Stat. 244. The Administrative Procedure Act thus allows adminis- trative law judges to be removed only “for good cause” found by the Merit Systems Protection Board. §7521(a). And the President may, in turn, remove members of the Merit Systems Protection Board only for “inefficiency, neglect of duty, or malfeasance in office.” §1202(d). Thus, Congress seems to have provided administrative law judges with two levels of protection from removal without cause—just what Free Enterprise Fund interpreted the Constitution to forbid in the case of the Board members. The substantial independence that the Administrative Procedure Act’s removal protections provide to adminis- trative law judges is a central part of the Act’s overall 6 LUCIA v. SEC BREYER, J., concurring Opinioninofpart and, dissenting BREYER J. in part scheme. See Ramspeck v. Federal Trial Examiners Con- ference, 345 U.S. 128, 130 (1953); Wong Yang Sung v. McGrath, 339 U.S. 33, 46 (1950). Before the Administra- tive Procedure Act, hearing examiners “were in a depend- ent status” to their employing agency, with their classifi- cation, compensation, and promotion all dependent on how the agency they worked for rated them. Ramspeck, 345 U.S., at 130. As a result of that dependence, “[m]any complaints were voiced against the actions of the hearing examiners, it being charged that they were mere tools of the agency concerned and subservient to the agency heads in making their proposed findings of fact and recommen- dations.” Id., at 131. The Administrative Procedure Act responded to those complaints by giving administrative law judges “independence and tenure within the existing Civil Service system.” Id., at 132; cf. Wong Yang Sung, supra, at 41–46 (referring to removal protections as among the Administrative Procedure Act’s “safeguards . . . in- tended to ameliorate” the perceived “evils” of commingling of adjudicative and prosecutorial functions in agencies). If the Free Enterprise Fund Court’s holding applies equally to the administrative law judges—and I stress the “if ”—then to hold that the administrative law judges are “Officers of the United States” is, perhaps, to hold that their removal protections are unconstitutional. This would risk transforming administrative law judges from independent adjudicators into dependent decisionmakers, serving at the pleasure of the Commission. Similarly, to apply Free Enterprise Fund’s holding to high-level civil servants threatens to change the nature of our merit- based civil service as it has existed from the time of Presi- dent Chester Alan Arthur. See Free Enterprise Fund, 561 U.S., at 540–542 (BREYER, J., dissenting). I have stressed the words “if ” and “perhaps” in the previous paragraph because Free Enterprise Fund’s hold- ing may not invalidate the removal protections applicable Cite as: 585 U. S. ____ (2018) 7 BREYER, J., concurring Opinioninofpart and, dissenting BREYER J. in part to the Commission’s administrative law judges even if the judges are inferior “officers of the United States” for pur- poses of the Appointments Clause. In my dissent in Free Enterprise Fund, I pointed out that under the majority’s analysis, the removal protections applicable to administra- tive law judges—including specifically the Commission’s administrative law judges—would seem to be unconstitu- tional. Id., at 542, 587. But the Court disagreed, saying that “none of the positions [my dissent] identifie[d] are similarly situated to the Board.” Id., at 506. The Free Enterprise Fund Court gave three reasons why administrative law judges were distinguishable from the Board members at issue in that case. First, the Court said that “[w]hether administrative law judges are necessarily ‘Officers of the United States’ is disputed.” Id., at 507, n. 10. Second, the Court said that “unlike members of the Board, many administrative law judges of course perform adjudicative rather than enforcement or policymaking functions, see [5 U.S. C.] §§554(d), 3105, or possess purely recommendatory powers.” Ibid. And, third, the Court pointed out that the civil service “employees” and adminis- trative law judges to whom I referred in my dissent do not “enjoy the same significant and unusual protections from Presidential oversight as members of the Board.” Id., at 506. The Court added that the kind of “for cause” protec- tion the statutes provided for Board members was “un- usually high.” Id., at 503. The majority here removes the first distinction, for it holds that the Commission’s administrative law judges are inferior “Officers of the United States.” Ante, at 1. The other two distinctions remain. See, e.g., Wiener v. United States, 357 U.S. 349, 355–356 (1958) (holding that Con- gress is free to protect bodies tasked with “ ‘adjudicat[ing] according to law’ . . . ‘from the control or coercive influ- ence, direct or indirect,’ . . . of either the Executive or Congress”) (quoting Humphrey’s Executor v. United States, 8 LUCIA v. SEC BREYER, J., concurring Opinioninofpart and, dissenting BREYER J. in part 295 U.S. 602, 629 (1935)). But the Solicitor General has nevertheless argued strongly that we should now decide the constitutionality of the administrative law judges’ removal protections as well as their means of appoint- ment. And in his view, the administrative law judges’ statutory removal protections violate the Constitution (as interpreted in Free Enterprise Fund), unless we construe those protections as giving the Commission substantially greater power to remove administrative law judges than it presently has. See Merits Brief for Respondent 45–55. On the Solicitor General’s account, for the administra- tive law judges’ removal protections to be constitutional, the Commission itself must have the power to remove administrative law judges “for failure to follow lawful instructions or perform adequately.” Id., at 48. The Merit Systems Protection Board would then review only the Commission’s factfinding, and not whether the facts (as found) count as “good cause” for removal. Id., at 52–53. This technical-sounding standard would seem to weaken the administrative law judges’ “for cause” removal protec- tions considerably, by permitting the Commission to re- move an administrative law judge with whose judgments it disagrees—say, because the judge did not find a securities- law violation where the Commission thought there was one, or vice versa. In such cases, the law allows the Commission to overrule an administrative law judge’s findings, for the decision is ultimately the Commission’s. See 15 U.S. C. §78d–1(b). But it does not allow the Com- mission to fire the administrative law judge. See 5 U.S. C. §7521. And now it should be clear why the application of Free Enterprise Fund to administrative law judges is im- portant. If that decision does not limit or forbid Congress’ statutory “for cause” protections, then a holding that the administrative law judges are “inferior Officers” does not conflict with Congress’ intent as revealed in the statute. Cite as: 585 U. S. ____ (2018) 9 BREYER, J., concurring Opinioninofpart and, dissenting BREYER J. in part But, if the holding is to the contrary, and more particularly if a holding that administrative law judges are “inferior Officers” brings with it application of Free Enterprise Fund’s limitation on “for cause” protections from removal, then a determination that administrative law judges are, constitutionally speaking, “inferior Officers” would directly conflict with Congress’ intent, as revealed in the statute. In that case, it would be clear to me that Congress did not intend that consequence, and that it therefore did not intend to make administrative law judges “inferior Offi- cers” at all. B Congress’ intent on the question matters, in my view, because the Appointments Clause is properly understood to grant Congress a degree of leeway as to whether partic- ular Government workers are officers or instead mere employees not subject to the Appointments Clause. The words “by Law” appear twice in the Clause. It says that the President (“with the Advice and Consent of the Sen- ate”) shall appoint “Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, . . . which shall be estab- lished by Law.” Art. II, §2, cl. 2 (emphasis added). It then adds that “Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the Presi- dent alone, in the Courts of Law, or in the Heads of De- partments.” Ibid. (emphasis added). The use of the words “by Law” to describe the estab- lishment and means of appointment of “Officers of the United States,” together with the fact that Article I of the Constitution vests the legislative power in Congress, suggests that (other than the officers the Constitution specifically lists) Congress, not the Judicial Branch alone, must play a major role in determining who is an “Office[r] of the United States.” And Congress’ intent in this specific 10 LUCIA v. SEC BREYER, J., concurring Opinioninofpart and, dissenting BREYER J. in part respect is often highly relevant. Congress’ leeway is not, of course, absolute—it may not, for example, say that positions the Constitution itself describes as “Officers” are not “Officers.” But given the constitutional language, the Court, when deciding whether other positions are “Officers of the United States” under the Appointments Clause, should give substantial weight to Congress’ decision. How is the Court to decide whether Congress intended that the holder of a particular Government position count as an “Office[r] of the United States”? Congress might, of course, write explicitly into the statute that the employee “is an officer of the United States under the Appointments Clause,” but an explicit phrase of this kind is unlikely to appear. If it does not, then I would approach the question like any other difficult question of statutory interpreta- tion. Several considerations, among others, are likely to be relevant. First, as the Court said in Freytag v. Com- missioner, 501 U.S. 868, 881 (1991), and repeats today, ante, at 6, where Congress grants an appointee “ ‘signifi- cant authority pursuant to the laws to the United States,’ ” that supports the view that (but should not determinatively decide that) Congress made that appointee an “Office[r] of the United States.” Freytag, supra, at 881 (quoting Buck- ley, 424 U.S., at 126); see also United States v. Germaine, 99 U.S. 508, 511 (1879) (holding that the term “officer” “embraces the ideas of tenure, duration, emolument, and duties”). The means of appointment that Congress chooses is also instructive. Where Congress provides a method of appointment that mimics a method the Appointments Clause allows for “Officers,” that fact too supports the view that (but does not determinatively decide that) Con- gress viewed the position as one to be held by an “Officer,” and vice versa. See id., at 509–511. And the Court’s decision in Free Enterprise Fund suggests a third indica- tion of “Officer” status—did Congress provide the position with removal protections that would be unconstitutional if Cite as: 585 U. S. ____ (2018) 11 BREYER, J., concurring Opinioninofpart and, dissenting BREYER J. in part provided for an “Officer”? See 561 U.S., at 514. That fact would support (but again not be determinative of) the opposite view—that Congress did not intend to confer “inferior Officer” status on the position. As I said, these statutory features, while highly rele- vant, need not always prove determinative. The vast number of different civil service positions, with different tasks, different needs, and different requirements for independence, mean that this is not the place to lay down bright-line rules. Rather, as this Court has said, “[t]he versatility of circumstances often mocks a natural desire for definitiveness” in this area. Wiener, 357 U.S., at 352. No case from this Court holds that Congress lacks this sort of constitutional leeway in determining whether a particular Government position will be filled by an “Of- fice[r] of the United States.” To the contrary, while we have repeatedly addressed whether particular officials are “Officers,” in all cases but one, we have upheld the ap- pointment procedures Congress enacted as consistent with the Appointments Clause. See, e.g., Edmond v. United States, 520 U.S. 651, 666 (1997) (holding that Congress’ appointment procedure for military court judges “is in conformity with the Appointments Clause of the Constitu- tion”); Freytag, supra, at 888–891 (same as to special trial judges of the Tax Court); Rice v. Ames, 180 U.S. 371, 378 (1901) (same as to district court “commissioners”); Ex parte Siebold, 100 U.S. 371, 397–398 (1880) (same as to “supervisors of election”). But see Buckley, supra, at 124–137. The one exception was Buckley, 424 U.S., at 124–137, in which the Court set aside Congress’ prescribed appoint- ment method for some members of the Federal Election Commission—appointment by Congress itself—as incon- sistent with the Appointments Clause. But Buckley in- volved Federal Election Commission members with enor- mous powers. They had “primary and substantial 12 LUCIA v. SEC BREYER, J., concurring Opinioninofpart and, dissenting BREYER J. in part responsibility for administering and enforcing the” Federal Election Campaign Act of 1971, id., at 109, an “intricate statutory scheme . . . to regulate federal election cam- paigns,” id., at 12. They had “extensive rulemaking and adjudicative powers,” id., at 110; the power to enforce the law through civil lawsuits, id., at 111; and the power to disqualify a candidate from running for federal office, id., at 112–113. Federal Election Commissioners thus had powers akin to the “principal Officer[s]” of an Executive Department, whom the Constitution expressly refers to as “Officers,” see Art. II, §2, cl. 1. It is not surprising that Congress exceeded any leeway the Appointments Clause granted when it deviated from the Clause’s appointments’ methods in respect to an office with powers very similar to those of the Officers listed in the Constitution itself. Thus, neither Buckley nor any other case forecloses an interpretation of the Appointments Clause that focuses principally on whether the relevant statutes show that Congress intended that a particular Government position be held by an “Office[r] of the United States.” Adopting such an approach, I would not answer the question whether the Securities and Exchange Commission’s administrative law judges are constitutional “Officers” without first decid- ing the pre-existing Free Enterprise Fund question— namely, what effect that holding would have on the statu- tory “for cause” removal protections that Congress provided for administrative law judges. If, for example, Free Enter- prise Fund means that saying administrative law judges are “inferior Officers” will cause them to lose their “for cause” removal protections, then I would likely hold that the administrative law judges are not “Officers,” for to say otherwise would be to contradict Congress’ enactment of those protections in the Administrative Procedure Act. In contrast, if Free Enterprise Fund does not mean that an administrative law judge (if an “Office[r] of the United States”) would lose “for cause” protections, then it is more Cite as: 585 U. S. ____ (2018) 13 BREYER, J., concurring Opinioninofpart and, dissenting BREYER J. in part likely that interpreting the Administrative Procedure Act as conferring such status would not run contrary to Con- gress’ intent. In such a case, I would more likely hold that, given the other features of the Administrative Proce- dure Act, Congress did intend to make administrative law judges inferior “Officers of the United States.” III Separately, I also disagree with the majority’s conclu- sion that the proper remedy in this case requires a hearing before a different administrative law judge. Ante, at 12– 13. The Securities and Exchange Commission has now itself appointed the Administrative Law Judge in ques- tion, and I see no reason why he could not rehear the case. After all, when a judge is reversed on appeal and a new trial ordered, typically the judge who rehears the case is the same judge who heard it the first time. The reversal here is based on a technical constitutional question, and the reversal implies no criticism at all of the original judge or his ability to conduct the new proceedings. For him to preside once again would not violate the structural pur- poses that we have said the Appointments Clause serves, see Freytag, 501 U.S., at 878, nor would it, in any obvious way, violate the Due Process Clause. Regardless, this matter was not addressed below and has not been fully argued here. I would, at a minimum, ask the Court of Appeals to examine it on remand rather than decide it here now. That is especially so because the majority seems to state a general rule that a different “Officer” must always preside after an Appointments Clause violation. In a case like this one, that is a relatively minor imposition, because the Commission has other administrative law judges. But in other cases—say, a case adjudicated by an improperly appointed (but since reap- pointed) Commission itself—the “Officer” in question may be the only such “Officer,” so that no substitute will be 14 LUCIA v. SEC BREYER, J., concurring Opinioninofpart and, dissenting BREYER J. in part available. The majority suggests that in such cases, the “rule of necessity” may excuse compliance with its new- found different-“Officer” requirement. Ante, at 12–13, n. 5. But that still does not explain why the Constitution would require a hearing before a different “Officer” at all. * * * The Court’s decision to address the Appointments Clause question separately from the constitutional removal question is problematic. By considering each question in isolation, the Court risks (should the Court later extend Free Enterprise Fund) unraveling, step-by-step, the foun- dations of the Federal Government’s administrative adju- dication system as it has existed for decades, and perhaps of the merit-based civil-service system in general. And the Court risks doing so without considering that potential consequence. For these reasons, I concur in the judgment in part and, with respect, I dissent in part. Cite as: 585 U. S. ____ (2018) 1 SOTOMAYOR, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 17–130 _________________ RAYMOND J. LUCIA, ET AL., PETITIONERS v.

I agree with the Court that this case is indistinguishable from If the special trial judges in were “Officers of the United States,” Art. II, cl. 2, then so are the administrative law judges of the Securities and Exchange Commission. Moving forward, however, this Court will not be able to decide every Appointments Clause case by comparing it to And, as the Court acknowledges, our precedents in this area do not provide much guidance. See ante, at 6. While precedents like discuss what is sufficient to make someone an officer of the United States, our prece- dents have never clearly defined what is necessary. I would resolve that question based on the original public meaning of “Officers of the United States.” To the Found- ers, this term encompassed all federal civil officials “ ‘with responsibility for an ongoing statutory duty.’ ” NLRB v. SW Inc., 580 U. S. (2017) (THOMAS, J., concurring) (slip op., at 4); Mascott, Who Are “Officers of the United States”? (Mascott).1 —————— 1 I address only the dividing line between “Officers of the United States,” who are subject to the Appointments Clause, and nonofficer 2 LUCIA v. SEC THOMAS, J., concurring The Appointments Clause provides the exclusive process for appointing “Officers of the United States.” See SW at (opinion of THOMAS, J.) (slip op., at 1). While principal officers must be nominated by the President and confirmed by the Senate, Congress can authorize the appointment of “inferior Officers” by “the President alone,” “the Courts of Law,” or “the Heads of Departments.” Art. II, cl. 2. This alternative process for appointing inferior officers strikes a balance between efficiency and accountability. Given the sheer number of inferior officers, it would be too burdensome to require each of them to run the gauntlet of Senate confirmation. See United States v. Germaine, 99 U.S. 508, 509–510 ; 2 Records of the Federal Con- vention of 1787, pp. 627–628 (M. Farrand ed. 1911). But, by specifying only a limited number of actors who can appoint inferior officers without Senate confirmation, the Appointments Clause maintains clear lines of accountabil- ity—encouraging good appointments and giving the public someone to blame for bad ones. See The Federalist No. 76, p. 455 (C. Rossiter ed. 1961) (A. Hamilton); Wilson, Lec- tures on Law: Government, in 1 The Works of James Wilson 343, 359–361 (J. Andrews ed., 1896). The Founders likely understood the term “Officers of the United States” to encompass all federal civil officials who perform an ongoing, statutory duty—no matter how im- portant or significant the duty. See Mascott 454. “Officers of the United States” was probably not a term of art that the Constitution used to signify some special type of offi- cial. Based on how the Founders used it and similar terms, the phrase “of the United States” was merely a —————— employees, who are not. I express no view on the meaning of “Office” or “Officer” in any other provision of the Constitution, or the difference between principal officers and inferior officers under the Appointments Clause. Cite as: 585 U. S. 3 THOMAS, J., concurring synonym for “federal,” and the word “Office[r]” carried its ordinary meaning. See at 471–479. The ordinary meaning of “officer” was anyone who performed a continu- ous public duty. See 4–507; e.g., United States v. Maurice, (No. 15,747) (CC Va. 1823) (defining officer as someone in “ ‘a public charge or em- ployment’ ” who performed a “continuing” duty); 8 Annals of Cong. 2304–2305 (1799) (statement of Rep. Harper) (explaining that the word officer “is derived from the Latin word officium” and “includes all persons holding posts which require the performance of some public duty”). For federal officers, that duty is “established by Law”—that is, by statute. Art. II, cl. 2. The Founders considered individuals to be officers even if they performed only ministerial statutory duties—including recordkeepers, clerks, and tidewaiters (individuals who watched goods land at a customhouse). See Mascott 484–507. Early congressional practice reflected this understanding. With exceptions not relevant here,2 Congress required all fed- eral officials with ongoing statutory duties to be appointed in compliance with the Appointments Clause. See at 507–545. Applying the original meaning here, the administrative law judges of the Securities and Exchange Commission easily qualify as “Officers of the United States.” These judges exercise many of the agency’s statutory duties, including issuing initial decisions in adversarial proceed- ings. See 15 U.S. C. 200.30– 9 (2017). As explained, the importance or significance of these statutory duties is irrelevant. All that matters is that the judges are continuously responsible for perform- —————— 2 The First Congress exempted certain officials with ongoing statu- tory duties, such as deputies and military officers, from the requirements of the Appointments Clause. But these narrow exceptions do not disprove the rule, as background principles of founding-era law explain each of them. See Mascott 480–483, 515–530. 4 LUCIA v. SEC THOMAS, J., concurring ing them. In short, the administrative law judges of the Securities Exchange Commission are “Officers of the United States” under the original meaning of the Appointments Clause. They have “ ‘responsibility for an ongoing statutory duty,’ ” which is sufficient to resolve this case. SW 580 U. S., at (opinion of THOMAS, J.) (slip op., at 4). Be- cause the Court reaches the same conclusion by correctly applying I join its opinion. Cite as: 585 U. S. 1 BREYER, J., concurring Opinioninofpart and, dissenting BREYER J. in part SUPREME COURT OF THE UNITED STATES No. 17– RAYMOND J. LUCIA, ET AL., PETITIONERS v. SECURITIES AND EXCHANGE COMMISSION ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT [June 21, 2018] JUSTICE BREYER, with whom JUSTICE GINSBURG and JUSTICE SOTOMAYOR join as to Part III, concurring in the judgment in part and dissenting in part. I agree with the Court that the Securities and Exchange Commission did not properly appoint the Administrative Law Judge who presided over petitioner Lucia’s hearing. But I disagree with the majority in respect to two matters. First, I would rest our conclusion upon statutory, not constitutional, grounds. I believe it important to do so because I cannot answer the constitutional question that the majority answers without knowing the answer to a different, embedded constitutional question, which the Solicitor urged us to answer in this case: the constitutionality of the statutory “for cause” removal protections that Congress provided for administrative law judges. Cf. Free Enterprise Second, I disagree with the Court in respect to the proper remedy. I The relevant statute here is the Administrative Proce- dure Act. That Act governs the appointment of adminis- trative law judges. It provides (as it has, in substance, since its enactment in 19) that “[e]ach agency shall appoint as many administrative law judges as are neces- 2 LUCIA v. SEC BREYER, J., concurring Opinioninofpart and, dissenting BREYER J. in part sary for” hearings governed by the Administrative Proce- dure Act. 5 U.S. C. see also Administrative Proce- dure Act, (original version, which refers to “examiners” as administrative law judges were then called). In the case of the Securities and Exchange Com- mission, the relevant “agency” is the Commission itself. But the Commission did not appoint the Administrative Law Judge who presided over Lucia’s hearing. Rather, the Commission’s staff appointed that Administrative Law Judge, without the approval of the Commissioners them- selves. See ante, at 1; App. to Pet. for Cert. 298a–299a. I do not believe that the Administrative Procedure Act permits the Commission to delegate its power to appoint its administrative law judges to its staff. We have held that, for purposes of the Constitution’s Appointments Clause, the Commission itself is a “ ‘Hea[d]’ ” of a “ ‘De- partmen[t].’ ” Free Enterprise at 512–513. Thus, reading the statute as referring to the Commission itself, and not to its staff, avoids a difficult constitutional question, namely, the very question that the Court an- swers today: whether the Commission’s administrative law judges are constitutional “inferior Officers” whose appointment Congress may vest only in the President, the “Courts of Law,” or the “Heads of Departments.” Art. II, cl. 2; see United 401 (1916) (“A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitu- tional but also grave doubts upon that score”). I have found no other statutory provision that would permit the Commission to delegate the power to appoint its administrative law judges to its staff. The statute establishing and governing the Commission does allow the Commission to “delegate, by published order or rule, any of its functions to a division of the Commission, an indi- vidual Commissioner, an administrative law judge, or an employee or employee board.” 15 U.S. C. But Cite as: 585 U. S. 3 BREYER, J., concurring Opinioninofpart and, dissenting BREYER J. in part this provision requires a “published order or rule,” and the Commission here published no relevant delegating order or rule. Rather, Lucia discovered the Commission’s ap- pointment system for administrative law judges only when the Commission’s enforcement division staff filed an affi- davit in this case describing that staff-based system. See App. to Pet. for Cert. 295a–299a. Regardless, the same constitutional-avoidance reasons that should inform our construction of the Administrative Procedure Act should also lead us to interpret the Commission’s general delega- tion authority as excluding the power to delegate to staff the authority to appoint its administrative law judges, so as to avoid the constitutional question the Court reaches in this case. See Jin Fuey The analysis may differ for other agencies that employ administrative law judges. Each agency’s governing stat- ute is different, and some, unlike the Commission’s, may allow the delegation of duties without a published order or rule. See, e.g., 42 U.S. C. (applicable to the Social Security Administration). Similarly, other agencies’ administrative law judges perform distinct functions, and their means of appointment may therefore not raise the constitutional questions that inform my reading of the relevant statutes here. The upshot, in my view, is that for statutory, not consti- tutional, reasons, the Commission did not lawfully appoint the Administrative Law Judge here at issue. And this Court should decide no more than that. II A The reason why it is important to go no further arises from the holding in a case this Court decided eight years ago, Free Enterprise The case concerned statutory provisions protecting members of the Public Company Accounting Oversight Board from removal 4 LUCIA v. SEC BREYER, J., concurring Opinioninofpart and, dissenting BREYER J. in part without cause. The Court held in that case that the Exec- utive Vesting Clause of the Constitution, Art. II, (“[t]he executive Power shall be vested in a President of the United States of America”), forbade Congress from provid- ing members of the Board with “multilevel protection from removal” by the President. Free Enterprise 561 U.S., 4; see (“Congress cannot limit the President’s authority” by providing “two levels of protec- tion from removal for those who exercise significant executive power”). But see –549 (BREYER, J., dissenting). Because, in the Court’s view, the relevant statutes (1) granted the Securities and Exchange Commis- sioners protection from removal without cause, (2) gave the Commissioners sole authority to remove Board mem- bers, and (3) protected Board members from removal without cause, the statutes provided Board members with two levels of protection from removal and consequently violated the Constitution. at 495–498. In addressing the constitutionality of the Board mem- bers’ removal protections, the Court emphasized that the Board members were “executive officers”—more specifically, “inferior officers” for purposes of the Appointments Clause. E.g., at 492–495, 504–505. The significance of that fact to the Court’s analysis is not entirely clear. The Court said: “The parties here concede that Board members are executive ‘Officers’, as that term is used in the Consti- tution. We do not decide the status of other Govern- ment employees, nor do we decide whether ‘lesser functionaries subordinate to officers of the United States’ must be subject to the same sort of control as those who exercise ‘significant authority pursuant to the laws.’ ” (quoting Buck v. Valeo, 424 U.S. 1, 126, and n. 162 (1976) (per curiam); citations omitted). Cite as: 585 U. S. 5 BREYER, J., concurring Opinioninofpart and, dissenting BREYER J. in part Thus, the Court seemed not only to limit its holding to the Board members themselves, but also to suggest that Gov- ernment employees who were not officers would be distin- guishable from the Board members on that ground alone. For present purposes, however, the implications of Free Enterprise ’s technical-sounding holding about “mul- tilevel protection from removal” remain potentially dra- The same statute, the Adminis- trative Procedure Act, that provides that the “agency” will appoint its administrative law judges also protects the administrative law judges from removal without cause. In particular, the statute says that an “action may be taken against an administrative law judge appointed under section 3105 of this title by the agency in which the administrative law judge is em- ployed only for good cause established and determined by the Merit Systems Protection Board on the record after opportunity for hearing before the Board.” 5 U.S. C. As with appointments, this provision constituted an im- portant part of the Administrative Procedure Act when it was originally enacted in 19. See The Administrative Procedure Act thus allows adminis- trative law judges to be removed only “for good cause” found by the Merit Systems Protection Board. And the President may, in turn, remove members of the Merit Systems Protection Board only for “inefficiency, neglect of duty, or malfeasance in office.” 202(d). Thus, Congress seems to have provided administrative law judges with two levels of protection from removal without cause—just what Free Enterprise interpreted the Constitution to forbid in the case of the Board members. The substantial independence that the Administrative Procedure Act’s removal protections provide to adminis- trative law judges is a central part of the Act’s overall 6 LUCIA v. SEC BREYER, J., concurring Opinioninofpart and, dissenting BREYER J. in part scheme. See ; Wong Yang Sung v. McGrath, Before the Administra- tive Procedure Act, hearing examiners “were in a depend- ent status” to their employing agency, with their classifi- cation, compensation, and promotion all dependent on how the agency they worked for rated them. Ramspeck, 345 U.S., at As a result of that dependence, “[m]any complaints were voiced against the actions of the hearing examiners, it being charged that they were mere tools of the agency concerned and subservient to the agency heads in making their proposed findings of fact and recommen- dations.” The Administrative Procedure Act responded to those complaints by giving administrative law judges “independence and tenure within the existing Civil Service system.” ; cf. Wong Yang Sung, at 41– (referring to removal protections as among the Administrative Procedure Act’s “safeguards in- tended to ameliorate” the perceived “evils” of commingling of adjudicative and prosecutorial functions in agencies). If the Free Enterprise Court’s holding applies equally to the administrative law judges—and I stress the “if ”—then to hold that the administrative law judges are “Officers of the United States” is, perhaps, to hold that their removal protections are unconstitutional. This would risk transforming administrative law judges from independent adjudicators into dependent decisionmakers, serving at the pleasure of the Commission. Similarly, to apply Free Enterprise ’s holding to high-level civil servants threatens to change the nature of our merit- based civil service as it has existed from the time of Presi- dent Chester Alan Arthur. See Free Enterprise 561 U.S., at 540–542 (BREYER, J., dissenting). I have stressed the words “if ” and “perhaps” in the previous paragraph because Free Enterprise ’s hold- ing may not invalidate the removal protections applicable Cite as: 585 U. S. 7 BREYER, J., concurring Opinioninofpart and, dissenting BREYER J. in part to the Commission’s administrative law judges even if the judges are inferior “officers of the United States” for pur- poses of the Appointments Clause. In my dissent in Free Enterprise I pointed out that under the majority’s analysis, the removal protections applicable to administra- tive law judges—including specifically the Commission’s administrative law judges—would seem to be unconstitu- tional. But the Court disagreed, saying that “none of the positions [my dissent] identifie[d] are similarly situated to the Board.” The Free Enterprise Court gave three reasons why administrative law judges were distinguishable from the Board members at issue in that case. First, the Court said that “[w]hether administrative law judges are necessarily ‘Officers of the United States’ is disputed.” n. 10. Second, the Court said that “unlike members of the Board, many administrative law judges of course perform adjudicative rather than enforcement or policymaking functions, see [5 U.S. C.] 3105, or possess purely recommendatory powers.” And, third, the Court pointed out that the civil service “employees” and adminis- trative law judges to whom I referred in my dissent do not “enjoy the same significant and unusual protections from Presidential oversight as members of the Board.” at 506. The Court added that the kind of “for cause” protec- tion the statutes provided for Board members was “un- usually high.” The majority here removes the first distinction, for it holds that the Commission’s administrative law judges are inferior “Officers of the United States.” Ante, at 1. The other two distinctions remain. See, e.g., (holding that Con- gress is free to protect bodies tasked with “ ‘adjudicat[ing] according to law’ ‘from the control or coercive influ- ence, direct or indirect,’ of either the Executive or Congress”) ). But the Solicitor has nevertheless argued strongly that we should now decide the constitutionality of the administrative law judges’ removal protections as well as their means of appoint- ment. And in his view, the administrative law judges’ statutory removal protections violate the Constitution (as interpreted in Free Enterprise ), unless we construe those protections as giving the Commission substantially greater power to remove administrative law judges than it presently has. See Merits Brief for Respondent 45–55. On the Solicitor ’s account, for the administra- tive law judges’ removal protections to be constitutional, the Commission itself must have the power to remove administrative law judges “for failure to follow lawful instructions or perform adequately.” The Merit Systems Protection Board would then review only the Commission’s factfinding, and not whether the facts (as found) count as “good cause” for removal. at 52–53. This technical-sounding standard would seem to weaken the administrative law judges’ “for cause” removal protec- tions considerably, by permitting the Commission to re- move an administrative law judge with whose judgments it disagrees—say, because the judge did not find a securities- law violation where the Commission thought there was one, or vice versa. In such cases, the law allows the Commission to overrule an administrative law judge’s findings, for the decision is ultimately the Commission’s. See 15 U.S. C. But it does not allow the Com- mission to fire the administrative law judge. See 5 U.S. C. And now it should be clear why the application of Free Enterprise to administrative law judges is im- portant. If that decision does not limit or forbid Congress’ statutory “for cause” protections, then a holding that the administrative law judges are “inferior Officers” does not conflict with Congress’ intent as revealed in the statute. Cite as: 585 U. S. 9 BREYER, J., concurring Opinioninofpart and, dissenting BREYER J. in part But, if the holding is to the contrary, and more particularly if a holding that administrative law judges are “inferior Officers” brings with it application of Free Enterprise ’s limitation on “for cause” protections from removal, then a determination that administrative law judges are, constitutionally speaking, “inferior Officers” would directly conflict with Congress’ intent, as revealed in the statute. In that case, it would be clear to me that Congress did not intend that consequence, and that it therefore did not intend to make administrative law judges “inferior Offi- cers” at all. B Congress’ intent on the question matters, in my view, because the Appointments Clause is properly understood to grant Congress a degree of leeway as to whether partic- ular Government workers are officers or instead mere employees not subject to the Appointments Clause. The words “by Law” appear twice in the Clause. It says that the President (“with the Advice and Consent of the Sen- ate”) shall appoint “Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, which shall be estab- lished by Law.” Art. II, cl. 2 It then adds that “Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the Presi- dent alone, in the Courts of Law, or in the Heads of De- partments.” The use of the words “by Law” to describe the estab- lishment and means of appointment of “Officers of the United States,” together with the fact that Article I of the Constitution vests the legislative power in Congress, suggests that (other than the officers the Constitution specifically lists) Congress, not the Judicial Branch alone, must play a major role in determining who is an “Office[r] of the United States.” And Congress’ intent in this specific 10 LUCIA v. SEC BREYER, J., concurring Opinioninofpart and, dissenting BREYER J. in part respect is often highly relevant. Congress’ leeway is not, of course, absolute—it may not, for example, say that positions the Constitution itself describes as “Officers” are not “Officers.” But given the constitutional language, the Court, when deciding whether other positions are “Officers of the United States” under the Appointments Clause, should give substantial weight to Congress’ decision. How is the Court to decide whether Congress intended that the holder of a particular Government position count as an “Office[r] of the United States”? Congress might, of course, write explicitly into the statute that the employee “is an officer of the United States under the Appointments Clause,” but an explicit phrase of this kind is unlikely to appear. If it does not, then I would approach the question like any other difficult question of statutory interpreta- tion. Several considerations, among others, are likely to be relevant. First, as the Court said in and repeats today, ante, at 6, where Congress grants an appointee “ ‘signifi- cant authority pursuant to the laws to the United States,’ ” that supports the view that (but should not determinatively decide that) Congress made that appointee an “Office[r] of the United States.” at (quoting Buck- ); see also United (holding that the term “officer” “embraces the ideas of tenure, duration, emolument, and duties”). The means of appointment that Congress chooses is also instructive. Where Congress provides a method of appointment that mimics a method the Appointments Clause allows for “Officers,” that fact too supports the view that (but does not determinatively decide that) Con- gress viewed the position as one to be held by an “Officer,” and vice versa. See at 509–. And the Court’s decision in Free Enterprise suggests a third indica- tion of “Officer” status—did Congress provide the position with removal protections that would be unconstitutional if Cite as: 585 U. S. 11 BREYER, J., concurring Opinioninofpart and, dissenting BREYER J. in part provided for an “Officer”? See 561 U.S., That fact would support (but again not be determinative of) the opposite view—that Congress did not intend to confer “inferior Officer” status on the position. As I said, these statutory features, while highly rele- vant, need not always prove determinative. The vast number of different civil service positions, with different tasks, different needs, and different requirements for independence, mean that this is not the place to lay down bright-line rules. Rather, as this Court has said, “[t]he versatility of circumstances often mocks a natural desire for definitiveness” in this area. No case from this Court holds that Congress lacks this sort of constitutional leeway in determining whether a particular Government position will be filled by an “Of- fice[r] of the United States.” To the contrary, while we have repeatedly addressed whether particular officials are “Officers,” in all cases but one, we have upheld the ap- pointment procedures Congress enacted as consistent with the Appointments Clause. See, e.g., (holding that Congress’ appointment procedure for military court judges “is in conformity with the Appointments Clause of the Constitu- tion”); at 888–891 (same as to special trial judges of the Tax Court); (1901) (same as to district court “commissioners”); Ex parte Siebold, (same as to “supervisors of election”). But see Buck, at 124–137. The one exception was Buck, –137, in which the Court set aside Congress’ prescribed appoint- ment method for some members of the Federal Election Commission—appointment by Congress itself—as incon- sistent with the Appointments Clause. But Buck in- volved Federal Election Commission members with enor- mous powers. They had “primary and substantial 12 LUCIA v. SEC BREYER, J., concurring Opinioninofpart and, dissenting BREYER J. in part responsibility for administering and enforcing the” Federal Election Campaign Act of 1971, an “intricate statutory scheme to regulate federal election cam- paigns,” They had “extensive rulemaking and adjudicative powers,” ; the power to enforce the law through civil lawsuits, ; and the power to disqualify a candidate from running for federal office, at 112–113. Federal Election Commissioners thus had powers akin to the “principal Officer[s]” of an Executive Department, whom the Constitution expressly refers to as “Officers,” see Art. II, cl. 1. It is not surprising that Congress exceeded any leeway the Appointments Clause granted when it deviated from the Clause’s appointments’ methods in respect to an office with powers very similar to those of the Officers listed in the Constitution itself. Thus, neither Buck nor any other case forecloses an interpretation of the Appointments Clause that focuses principally on whether the relevant statutes show that Congress intended that a particular Government position be held by an “Office[r] of the United States.” Adopting such an approach, I would not answer the question whether the Securities and Exchange Commission’s administrative law judges are constitutional “Officers” without first decid- ing the pre-existing Free Enterprise question— namely, what effect that holding would have on the statu- tory “for cause” removal protections that Congress provided for administrative law judges. If, for example, Free Enter- prise means that saying administrative law judges are “inferior Officers” will cause them to lose their “for cause” removal protections, then I would likely hold that the administrative law judges are not “Officers,” for to say otherwise would be to contradict Congress’ enactment of those protections in the Administrative Procedure Act. In contrast, if Free Enterprise does not mean that an administrative law judge (if an “Office[r] of the United States”) would lose “for cause” protections, then it is more Cite as: 585 U. S. 13 BREYER, J., concurring Opinioninofpart and, dissenting BREYER J. in part likely that interpreting the Administrative Procedure Act as conferring such status would not run contrary to Con- gress’ intent. In such a case, I would more likely hold that, given the other features of the Administrative Proce- dure Act, Congress did intend to make administrative law judges inferior “Officers of the United States.” III Separately, I also disagree with the majority’s conclu- sion that the proper remedy in this case requires a hearing before a different administrative law judge. Ante, – 13. The Securities and Exchange Commission has now itself appointed the Administrative Law Judge in ques- tion, and I see no reason why he could not rehear the case. After all, when a judge is reversed on appeal and a new trial ordered, typically the judge who rehears the case is the same judge who heard it the first time. The reversal here is based on a technical constitutional question, and the reversal implies no criticism at all of the original judge or his ability to conduct the new proceedings. For him to preside once again would not violate the structural pur- poses that we have said the Appointments Clause serves, see nor would it, in any obvious way, violate the Due Process Clause. Regardless, this matter was not addressed below and has not been fully argued here. I would, at a minimum, ask the Court of Appeals to examine it on remand rather than decide it here now. That is especially so because the majority seems to state a general rule that a different “Officer” must always preside after an Appointments Clause violation. In a case like this one, that is a relatively minor imposition, because the Commission has other administrative law judges. But in other cases—say, a case adjudicated by an improperly appointed (but since reap- pointed) Commission itself—the “Officer” in question may be the only such “Officer,” so that no substitute will be 14 LUCIA v. SEC BREYER, J., concurring Opinioninofpart and, dissenting BREYER J. in part available. The majority suggests that in such cases, the “rule of necessity” may excuse compliance with its new- found different-“Officer” requirement. Ante, –13, n. 5. But that still does not explain why the Constitution would require a hearing before a different “Officer” at all. * * * The Court’s decision to address the Appointments Clause question separately from the constitutional removal question is proble By considering each question in isolation, the Court risks (should the Court later extend Free Enterprise ) unraveling, step-by-step, the foun- dations of the Federal Government’s administrative adju- dication system as it has existed for decades, and perhaps of the merit-based civil-service system in general. And the Court risks doing so without considering that potential consequence. For these reasons, I concur in the judgment in part and, with respect, I dissent in part. Cite as: 585 U. S. 1 SOTOMAYOR, J., dissenting SUPREME COURT OF THE UNITED STATES No. 17– RAYMOND J. LUCIA, ET AL., PETITIONERS v.

Justice Sotomayor

dissenting

Lucia v. SEC

2018-06-21

https://www.courtlistener.com/opinion/4509420/lucia-v-sec/

https://www.courtlistener.com/api/rest/v3/clusters/4509420/

2017-069

The Court today and scholars acknowledge that this Court’s Appointments Clause jurisprudence offers little guidance on who qualifies as an “Officer of the United States.” See, e.g., ante, at 6 (“The standard is no doubt framed in general terms, tempting advocates to add what- ever glosses best suit their arguments”); Plecnik, Officers Under the Appointments Clause, 11 Pitt. Tax Rev. 201, 204 (2014). The lack of guidance is not without conse- quence. “[Q]uestions about the Clause continue to arise regularly both in the operation of the Executive Branch and in proposed legislation.” 31 Opinion of Office of Legal Counsel 73, 76 (2007) (Op. OLC). This confusion can undermine the reliability and finality of proceedings and result in wasted resources. See ante, at 12–13 (opinion of the Court) (ordering the Commission to grant petitioners a new administrative hearing). As the majority notes, see ante, at 5–6, this Court’s decisions currently set forth at least two prerequisites to officer status: (1) an individual must hold a “continuing” office established by law, United States v. Germaine, 99 U.S. 508, 511–512 (1879), and (2) an individual must wield “significant authority,” Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam). The first requirement is relatively 2 LUCIA v. SEC SOTOMAYOR, J., dissenting easy to grasp; the second, less so. To be sure, to exercise “significant authority,” the person must wield considerable powers in comparison to the average person who works for the Federal Government. As this Court has noted, the vast majority of those who work for the Federal Govern- ment are not “Officers of the United States.” See Free Enterprise Fund v. Public Company Accounting Oversight Bd., 561 U.S. 477, 506, n. 9 (2010) (indicating that well over 90% of those who render services to the Federal Government and are paid by it are not constitutional officers). But this Court’s decisions have yet to articulate the types of powers that will be deemed significant enough to constitute “significant authority.” To provide guidance to Congress and the Executive Branch, I would hold that one requisite component of “significant authority” is the ability to make final, binding decisions on behalf of the Government. Accordingly, a person who merely advises and provides recommendations to an officer would not herself qualify as an officer. There is some historical support for such a requirement. For example, in 1822, the Supreme Judicial Court of Maine opined in the “fullest early explication” of the meaning of an “ ‘office,’ ” that “ ‘the term “office” implies a delegation of a portion of the sovereign power to, and possession of it by the person filling the office,’ ” that “ ‘in its effects[,] . . . will bind the rights of others.’ ” 31 Op. OLC 83 (quoting 3 Greenl. (Me.) 481, 482). In 1899, a Report of the Judiciary Committee of the House of Repre- sentatives noted that “the creation and conferring of an office involves a delegation to the individual of . . . sover- eign functions,” i.e., “the power to . . . legislate, . . . execute law, or . . . hear and determine judicially questions sub- mitted.” 1 A. Hinds, Precedents of the House of Repre- sentatives of the United States 607 (1907). Those who merely assist others in exercising sovereign functions but who do not have the authority to exercise sovereign pow- Cite as: 585 U. S. ____ (2018) 3 SOTOMAYOR, J., dissenting ers themselves do not wield significant authority. Id., at 607–608. Consequently, a person who possesses the “mere power to investigate some particular subject and report thereon” or to engage in negotiations “without [the] power to make binding” commitments on behalf of the Govern- ment is not an officer. Ibid. Confirming that final decisionmaking authority is a prerequisite to officer status would go a long way to aiding Congress and the Executive Branch in sorting out who is an officer and who is a mere employee. At the threshold, Congress and the Executive Branch could rule out as an officer any person who investigates, advises, or recom- mends, but who has no power to issue binding policies, execute the laws, or finally resolve adjudicatory questions. Turning to the question presented here, it is true that the administrative law judges (ALJs) of the Securities and Exchange Commission wield “extensive powers.” Ante, at 2. They preside over adversarial proceedings that can lead to the imposition of significant penalties on private par- ties. See ante, at 2–3 (noting that the proceedings in the present case resulted in the imposition of $300,000 in civil penalties, as well as a lifetime bar from the investment industry). In the hearings over which they preside, Com- mission ALJs also exercise discretion with respect to important matters. See ante, at 2 (discussing Commission ALJs’ powers to supervise discovery, issue subpoenas, rule on the admissibility of evidence, hear and examine wit- nesses, and regulate the course of the proceedings). Nevertheless, I would hold that Commission ALJs are not officers because they lack final decisionmaking author- ity. As the Commission explained below, the Commission retains “ ‘plenary authority over the course of [its] admin- istrative proceedings and the rulings of [its] law judges.’ ” In re Raymond J. Lucia Companies, Inc. & Raymond J. Lucia, Sr., SEC Release No. 75837 (Sept. 3, 2015). Com- mission ALJs can issue only “initial” decisions. 5 U.S. C. 4 LUCIA v. SEC SOTOMAYOR, J., dissenting §557(b). The Commission can review any initial decision upon petition or on its own initiative. 15 U.S. C. §78d– 1(b). The Commission’s review of an ALJ’s initial decision is de novo. 5 U.S. C. §557(c). It can “make any findings or conclusions that in its judgment are proper and on the basis of the record.” 17 CFR §201.411(a) (2017). The Commission is also in no way confined by the record ini- tially developed by an ALJ. The Commission can accept evidence itself or refer a matter to an ALJ to take addi- tional evidence that the Commission deems relevant or necessary. See ibid.; §201.452. In recent years, the Com- mission has accepted review in every case in which it was sought. See R. Jackson, Fact and Fiction: The SEC’s Oversight of Administrative Law Judges (Mar. 9, 2018), http://clsbluesky.law.columbia.edu/2018/03/09/fact-and-fiction- the-secs-oversight-of-administrative-law-judges/ (as last visited June 19, 2018). Even where the Commission does not review an ALJ’s initial decision, as in cases in which no party petitions for review and the Commission does not act sua sponte, the initial decision still only becomes final when the Commission enters a finality order. 17 CFR. §201.360(d)(2). And by operation of law, every action taken by an ALJ “shall, for all purposes, . . . be deemed the action of the Commission.” 15 U.S. C. §78d–1(c) (empha- sis added). In other words, Commission ALJs do not exercise significant authority because they do not, and cannot, enter final, binding decisions against the Govern- ment or third parties. The majority concludes that this case is controlled by Freytag v. Commissioner, 501 U.S. 868 (1991). See ante, at 6. In Freytag, the Court suggested that the Tax Court’s special trial judges (STJs) acted as constitutional officers even in cases where they could not enter final, binding decisions. In such cases, the Court noted, the STJs pre- sided over adversarial proceedings in which they exercised “significant discretion” with respect to “important func- Cite as: 585 U. S. ____ (2018) 5 SOTOMAYOR, J., dissenting tions,” such as ruling on the admissibility of evidence and hearing and examining witnesses. 501 U.S., at 881–882. That part of the opinion, however, was unnecessary to the result. The Court went on to conclude that even if the STJs’ duties in such cases were “not as significant as [the Court] found them to be,” its conclusion “would be un- changed.” Id., at 882. The Court noted that STJs could enter final decisions in certain types of cases, and that the Government had conceded that the STJs acted as officers with respect to those proceedings. Ibid. Because STJs could not be “officers for purposes of some of their duties . . . , but mere employees with respect to other[s],” the Court held they were officers in all respects. Ibid. Freytag is, therefore, consistent with a rule that a prerequisite to officer status is the authority, in at least some instances, to issue final decisions that bind the Government or third parties.* Because I would conclude that Commission ALJs are not officers for purposes of the Appointments Clause, it is not necessary to reach the constitutionality of their removal protections. See ante, at 1 (BREYER, J., concurring in judgment in part and dissenting in part). In any event, for at least the reasons stated in JUSTICE BREYER’s opinion, Free Enterprise Fund is readily distinguishable from the circumstances at play here. See ante, at 3–9. As a final matter, although I would conclude that Com- mission ALJs are not officers, I share JUSTICE BREYER’s concerns regarding the Court’s choice of remedy, and so I join Part III of his opinion. For the foregoing reasons, I respectfully dissent. —————— * Even the majority opinion is not inconsistent with such a rule, in that it appears to conclude, wrongly in my view, that Commission ALJs can at times render final decisions. See ante, at 10

The Court today and scholars acknowledge that this Court’s Appointments Clause jurisprudence offers little guidance on who qualifies as an “Officer of the United States.” See, e.g., ante, at 6 (“The standard is no doubt framed in general terms, tempting advocates to add what- ever glosses best suit their arguments”); Plecnik, Officers Under the Appointments Clause, 11 Pitt. Tax Rev. 201, 204 (2014). The lack of guidance is not without conse- quence. “[Q]uestions about the Clause continue to arise regularly both in the operation of the Executive Branch and in proposed legislation.” 31 Opinion of Office of Legal Counsel 73, 76 (2007) (Op. OLC). This confusion can undermine the reliability and finality of proceedings and result in wasted resources. See ante, at 12–13 (opinion of the Court) (ordering the Commission to grant petitioners a new administrative hearing). As the majority notes, see ante, at 5–6, this Court’s decisions currently set forth at least two prerequisites to officer status: (1) an individual must hold a “continuing” office established by law, United States v. Germaine, 99 U.S. 508, 511–512 (1879), and (2) an individual must wield “significant authority,” 126 (1976) (per curiam). The first requirement is relatively 2 LUCIA v. SEC SOTOMAYOR, J., dissenting easy to grasp; the second, less so. To be sure, to exercise “significant authority,” the person must wield considerable powers in comparison to the average person who works for the Federal Government. As this Court has noted, the vast majority of those who work for the Federal Govern- ment are not “Officers of the United States.” See Free Enterprise (indicating that well over 90% of those who render services to the Federal Government and are paid by it are not constitutional officers). But this Court’s decisions have yet to articulate the types of powers that will be deemed significant enough to constitute “significant authority.” To provide guidance to Congress and the Executive Branch, I would hold that one requisite component of “significant authority” is the ability to make final, binding decisions on behalf of the Government. Accordingly, a person who merely advises and provides recommendations to an officer would not herself qualify as an officer. There is some historical support for such a requirement. For example, in 1822, the Supreme Judicial Court of Maine opined in the “fullest early explication” of the meaning of an “ ‘office,’ ” that “ ‘the term “office” implies a delegation of a portion of the sovereign power to, and possession of it by the person filling the office,’ ” that “ ‘in its effects[,] will bind the rights of others.’ ” 31 Op. OLC 83 (quoting 3 Greenl. (Me.) 481, 482). In 1899, a Report of the Judiciary Committee of the House of Repre- sentatives noted that “the creation and conferring of an office involves a delegation to the individual of sover- eign functions,” i.e., “the power to legislate, execute law, or hear and determine judicially questions sub- mitted.” 1 A. Hinds, Precedents of the House of Repre- sentatives of the United States 607 (1907). Those who merely assist others in exercising sovereign functions but who do not have the authority to exercise sovereign pow- Cite as: 585 U. S. (2018) 3 SOTOMAYOR, J., dissenting ers themselves do not wield significant authority. at 607–608. Consequently, a person who possesses the “mere power to investigate some particular subject and report thereon” or to engage in negotiations “without [the] power to make binding” commitments on behalf of the Govern- ment is not an officer. Confirming that final decisionmaking authority is a prerequisite to officer status would go a long way to aiding Congress and the Executive Branch in sorting out who is an officer and who is a mere employee. At the threshold, Congress and the Executive Branch could rule out as an officer any person who investigates, advises, or recom- mends, but who has no power to issue binding policies, execute the laws, or finally resolve adjudicatory questions. Turning to the question presented here, it is true that the administrative law judges (ALJs) of the Securities and Exchange Commission wield “extensive powers.” Ante, at 2. They preside over adversarial proceedings that can lead to the imposition of significant penalties on private par- ties. See ante, at 2–3 (noting that the proceedings in the present case resulted in the imposition of $300,000 in civil penalties, as well as a lifetime bar from the investment industry). In the hearings over which they preside, Com- mission ALJs also exercise discretion with respect to important matters. See ante, at 2 (discussing Commission ALJs’ powers to supervise discovery, issue subpoenas, rule on the admissibility of evidence, hear and examine wit- nesses, and regulate the course of the proceedings). Nevertheless, I would hold that Commission ALJs are not officers because they lack final decisionmaking author- ity. As the Commission explained below, the Commission retains “ ‘plenary authority over the course of [its] admin- istrative proceedings and the rulings of [its] law judges.’ ” In re Raymond J. Lucia Companies, Inc. & Raymond J. Lucia, Sr., SEC Release No. 75837 (Sept. 3, 2015). Com- mission ALJs can issue only “initial” decisions. 5 U.S. C. 4 LUCIA v. SEC SOTOMAYOR, J., dissenting The Commission can review any initial decision upon petition or on its own initiative. 15 U.S. C. 1(b). The Commission’s review of an ALJ’s initial decision is de novo. 5 U.S. C. It can “make any findings or conclusions that in its judgment are proper and on the basis of the record.” (a) (2017). The Commission is also in no way confined by the record ini- tially developed by an ALJ. The Commission can accept evidence itself or refer a matter to an ALJ to take addi- tional evidence that the Commission deems relevant or necessary. See ibid.; In recent years, the Com- mission has accepted review in every case in which it was sought. See R. Jackson, Fact and Fiction: The SEC’s Oversight of Administrative Law Judges (Mar. 9, 2018), http://clsbluesky.law.columbia.edu/2018/03/09/fact-and-fiction- the-secs-oversight-of-administrative-law-judges/ (as last visited June 19, 2018). Even where the Commission does not review an ALJ’s initial decision, as in cases in which no party petitions for review and the Commission does not act sua sponte, the initial decision still only becomes final when the Commission enters a finality order. 17 CFR. And by operation of law, every action taken by an ALJ “shall, for all purposes, be deemed the action of the Commission.” 15 U.S. C. 1(c) (empha- sis added). In other words, Commission ALJs do not exercise significant authority because they do not, and cannot, enter final, binding decisions against the Govern- ment or third parties. The majority concludes that this case is controlled by See ante, at 6. In Freytag, the Court suggested that the Tax Court’s special trial judges (STJs) acted as constitutional officers even in cases where they could not enter final, binding decisions. In such cases, the Court noted, the STJs pre- sided over adversarial proceedings in which they exercised “significant discretion” with respect to “important func- Cite as: 585 U. S. (2018) 5 SOTOMAYOR, J., dissenting tions,” such as ruling on the admissibility of evidence and hearing and examining –882. That part of the opinion, however, was unnecessary to the result. The Court went on to conclude that even if the STJs’ duties in such cases were “not as significant as [the Court] found them to be,” its conclusion “would be un- changed.” The Court noted that STJs could enter final decisions in certain types of cases, and that the Government had conceded that the STJs acted as officers with respect to those proceedings. Because STJs could not be “officers for purposes of some of their duties but mere employees with respect to other[s],” the Court held they were officers in all respects. Freytag is, therefore, consistent with a rule that a prerequisite to officer status is the authority, in at least some instances, to issue final decisions that bind the Government or third parties.* Because I would conclude that Commission ALJs are not officers for purposes of the Appointments Clause, it is not necessary to reach the constitutionality of their removal protections. See ante, at 1 (BREYER, J., concurring in judgment in part and dissenting in part). In any event, for at least the reasons stated in JUSTICE BREYER’s opinion, Free Enterprise Fund is readily distinguishable from the circumstances at play here. See ante, at 3–9. As a final matter, although I would conclude that Com- mission ALJs are not officers, I share JUSTICE BREYER’s concerns regarding the Court’s choice of remedy, and so I join Part III of his opinion. For the foregoing reasons, I respectfully dissent. —————— * Even the majority opinion is not inconsistent with such a rule, in that it appears to conclude, wrongly in my view, that Commission ALJs can at times render final decisions. See ante, at 10

Justice Ginsburg

majority

Petrella v. Metro-Goldwyn-Mayer, Inc.

2014-05-19

https://www.courtlistener.com/opinion/2675754/petrella-v-metro-goldwyn-mayer-inc/

https://www.courtlistener.com/api/rest/v3/clusters/2675754/

2013-045

The Copyright Act provides that “[n]o civil action shall be maintained under the [Act] unless it is commenced within three years after the claim accrued.” 17 U.S. C. §507(b). This case presents the question whether the equitable defense of laches (unreasonable, prejudicial delay in commencing suit) may bar relief on a copyright infringement claim brought within §507(b)’s three-year limitations period. Section 507(b), it is undisputed, bars relief of any kind for conduct occurring prior to the three- year limitations period. To the extent that an infringe- ment suit seeks relief solely for conduct occurring within the limitations period, however, courts are not at liberty to jettison Congress’ judgment on the timeliness of suit. Laches, we hold, cannot be invoked to preclude adjudica- tion of a claim for damages brought within the three-year window. As to equitable relief, in extraordinary circum- stances, laches may bar at the very threshold the particu- lar relief requested by the plaintiff. And a plaintiff ’s delay can always be brought to bear at the remedial stage, in determining appropriate injunctive relief, and in assessing 2 PETRELLA v. METRO-GOLDWYN-MAYER, INC. Opinion of the Court the “profits of the infringer . . . attributable to the in- fringement.” §504(b).1 Petitioner Paula Petrella, in her suit for copyright in- fringement, sought no relief for conduct occurring outside §507(b)’s three-year limitations period. Nevertheless, the courts below held that laches barred her suit in its en- tirety, without regard to the currency of the conduct of which Petrella complains. That position, we hold, is con- trary to §507(b) and this Court’s precedent on the province of laches. I The Copyright Act (Act), 17 U.S. C. §101 et seq., grants copyright protection to original works of authorship. §102(a). Four aspects of copyright law bear explanation at the outset. First, the length of a copyright term. Under the Act, a copyright “vests initially in the author or authors of the work,” who may transfer ownership to a third party. §201. The Act confers on a copyright owner certain exclusive rights, including the rights to reproduce and distribute the work and to develop and market derivative works. §106. Copyrighted works published before 1978—as was the work at issue—are protected for an initial period of 28 years, which may be—and in this case was—extended for a renewal period of up to 67 years. §304(a). From and after January 1, 1978, works are generally protected from the date of creation until 70 years after the author’s death. —————— 1 As infringement remedies, the Copyright Act provides for injunc- tions, §502, impoundment and disposition of infringing articles, §503, damages and profits, §504, costs and attorney’s fees, §505. Like other restitutional remedies, recovery of profits “is not easily characterized as legal or equitable,” for it is an “amalgamation of rights and remedies drawn from both systems.” Restatement (Third) of Restitution and Unjust Enrichment §4, Comment b, p. 28 (2010). Given the “protean character” of the profits-recovery remedy, see id., Comment c, at 30, we regard as appropriate its treatment as “equitable” in this case. Cite as: 572 U. S. ____ (2014) 3 Opinion of the Court §302(a). Second, copyright inheritance. For works copyrighted under the pre-1978 regime in which an initial period of protection may be followed by a renewal period, Congress provided that the author’s heirs inherit the renewal rights. See §304(a)(1)(C)(ii)–(iv). We held in Stewart v. Abend, 495 U.S. 207 (1990), that if an author who has assigned her rights away “dies before the renewal period, then the assignee may continue to use the original work [to produce a derivative work] only if the author’s successor transfers the renewal rights to the assignee.” Id., at 221.2 Third, remedies. The Act provides a variety of civil remedies for infringement, both equitable and legal. See §§502–505, described supra, at 2, n. 1. A court may issue an injunction “on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.” §502(a). At the election of the copyright owner, a court may also award either (1) “the copyright owner’s actual damages and any additional profits of the infringer,” §504(a)(1), which petitioner seeks in the instant case, or (2) statutory damages within a defined range, §504(c). Fourth, and most significant here, the statute of limita- tions. Until 1957, federal copyright law did not include a statute of limitations for civil suits. Federal courts there- fore used analogous state statutes of limitations to deter- mine the timeliness of infringement claims. See S. Rep. No. 1014, 85th Cong., 1st Sess., 2 (1957) (hereinafter Senate Report). And they sometimes invoked laches to abridge the state-law prescription. As explained in Team- sters & Employers Welfare Trust of Ill. v. Gorman Bros. Ready Mix, 283 F.3d 877, 881 (CA7 2002): “When Con- gress fails to enact a statute of limitations, a [federal] —————— 2 For post-1978 works, heirs still have an opportunity to recapture rights of the author. See 3 M. Nimmer & D. Nimmer, Copyright §11.01[A], p. 11–4 (2013) (hereinafter Nimmer). 4 PETRELLA v. METRO-GOLDWYN-MAYER, INC. Opinion of the Court court that borrows a state statute of limitations but per- mits it to be abridged by the doctrine of laches is not in- vading congressional prerogatives. It is merely filling a legislative hole.” (internal citation omitted). In 1957, Congress addressed the matter and filled the hole; it prescribed a three-year look-back limitations period for all civil claims arising under the Copyright Act. See Act of Sept. 7, 1957, Pub. L. 85–313, 71 Stat. 633, 17 U.S. C. §115(b) (1958 ed.). The provision, as already noted, reads: “No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued.” §507(b).3 The federal limitations prescription governing copyright suits serves two purposes: (1) to render uniform and cer- tain the time within which copyright claims could be pursued; and (2) to prevent the forum shopping invited by disparate state limitations periods, which ranged from one to eight years. Senate Report 2; see H. R. Rep. No. 2419, 84th Cong., 2d Sess., 2 (1956). To comprehend how the Copyright Act’s limitations period works, one must under- stand when a copyright infringement claim accrues. A claim ordinarily accrues “when [a] plaintiff has a complete and present cause of action.” Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 201 (1997) (internal quotation marks omitted). In other words, the limitations period generally begins to run at the point when “the plaintiff can file suit and obtain relief.” Ibid. A copyright claim thus arises or “accrue[s]” when an infringing act occurs.4 —————— 3 The Copyright Act was pervasively revised in 1976, but the three- year look-back statute of limitations has remained materially un- changed. See Act of Oct. 19, 1976, §101, 90 Stat. 2586. 4 Although we have not passed on the question, nine Courts of Ap- peals have adopted, as an alternative to the incident of injury rule, a “discovery rule,” which starts the limitations period when “the plaintiff discovers, or with due diligence should have discovered, the injury that Cite as: 572 U. S. ____ (2014) 5 Opinion of the Court It is widely recognized that the separate-accrual rule attends the copyright statute of limitations.5 Under that rule, when a defendant commits successive violations, the statute of limitations runs separately from each violation. Each time an infringing work is reproduced or distributed, the infringer commits a new wrong. Each wrong gives rise to a discrete “claim” that “accrue[s]” at the time the wrong occurs.6 In short, each infringing act starts a new limita- tions period. See Stone v. Williams, 970 F.2d 1043, 1049 (CA2 1992) (“Each act of infringement is a distinct harm giving rise to an independent claim for relief.”). Under the Act’s three-year provision, an infringement is actionable within three years, and only three years, of its occurrence. And the infringer is insulated from liability for earlier infringements of the same work. See 3 M. Nimmer & D. Nimmer, Copyright §12.05[B][1][b], p. 12– 150.4 (2013) (“If infringement occurred within three years prior to filing, the action will not be barred even if prior —————— forms the basis for the claim.” William A. Graham Co. v. Haughey, 568 F.3d 425, 433 (CA3 2009) (internal quotation marks omitted). See also 6 W. Patry, Copyright §20:19, p. 20–28 (2013) (hereinafter Patry) (“The overwhelming majority of courts use discovery accrual in copyright cases.”). 5 See generally id., §20:23, at 20–44; 3 Nimmer §12.05[B][1][b], at 12– 150.2 to 12–150.4. See also, e.g., William A. Graham Co., 568 F.3d, at 433; Peter Letterese & Assoc., Inc. v. World Inst. of Scientology Enter- prises, Int’l, 533 F.3d 1287, 1320, n. 39 (CA11 2008); Bridgeport Music, Inc. v. Rhyme Syndicate Music, 376 F.3d 615, 621 (CA6 2004); Mak- edwde Publishing Co. v. Johnson, 37 F.3d 180, 182 (CA5 1994); Roley v. New World Pictures, Ltd., 19 F.3d 479, 481 (CA9 1994). 6 Separately accruing harm should not be confused with harm from past violations that are continuing. Compare Klehr v. A. O. Smith Corp., 521 U.S. 179, 190 (1997) (for separately accruing harm, each new act must cause “harm [to the plaintiff] over and above the harm that the earlier acts caused”), with Havens Realty Corp. v. Coleman, 455 U.S. 363, 380–381 (1982) (“[W]here a plaintiff . . . challenges . . . an unlawful practice that continues into the limitations period, the com- plaint is timely when it is filed within [the limitations period, measured from] the last asserted occurrence of that practice.” (footnote omitted)). 6 PETRELLA v. METRO-GOLDWYN-MAYER, INC. Opinion of the Court infringements by the same party as to the same work are barred because they occurred more than three years pre- viously.”). Thus, when a defendant has engaged (or is alleged to have engaged) in a series of discrete infringing acts, the copyright holder’s suit ordinarily will be timely under §507(b) with respect to more recent acts of in- fringement (i.e., acts within the three-year window), but untimely with respect to prior acts of the same or similar kind.7 In sum, Congress provided two controlling time pre- scriptions: the copyright term, which endures for decades, and may pass from one generation to another; and §507(b)’s limitations period, which allows plaintiffs during that lengthy term to gain retrospective relief running only —————— 7Acase arising outside of the copyright context is illustrative. In Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192 (1997), an employer was delinquent in making a series of scheduled payments to an underfunded pension plan. See id., at 198–199. The trustees filed suit just over six years after the first missed payment, barely outside of the applicable six-year statute of limitations. See id., at 198. Because the first missed payment in the series fell outside the statute of limitations, the employer argued that the subsequent missed payments were also time barred. See id., at 206. We rejected that argument. The remaining claims were timely, we held, because “each missed payment create[d] a separate cause of action with its own six-year limitations period.” Ibid. Cf. Klehr, 521 U. S., at 190 (for civil Racketeer Influenced and Corrupt Organizations Act claims, plaintiff may recover for acts occurring within the limita- tions period, but may not use an “independent, new predicate act as a bootstrap to recover for injuries caused by other earlier predicate acts that took place outside the limitations period”); National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 114–121 (2002) (distinguishing discrete acts, each independently actionable, from conduct “cumulative [in] effect,” e.g., hostile environment claims pur- sued under Title VII of the Civil Rights Act of 1964, 42 U.S. C. §2000e et seq.; “in direct contrast to discrete acts, a single [instance of hostility] may not be actionable on its own”). But cf. post, at 10–11 (ignoring the distinction Morgan took care to draw between discrete acts inde- pendently actionable and conduct cumulative in effect). Cite as: 572 U. S. ____ (2014) 7 Opinion of the Court three years back from the date the complaint was filed. II A The allegedly infringing work in this case is the criti- cally acclaimed motion picture Raging Bull, based on the life of boxing champion Jake LaMotta. After retiring from the ring, LaMotta worked with his longtime friend, Frank Petrella, to tell the story of the boxer’s career. Their venture resulted in three copyrighted works: two screen- plays, one registered in 1963, the other in 1973, and a book, registered in 1970. This case centers on the screen- play registered in 1963. The registration identified Frank Petrella as sole author, but also stated that the screenplay was written “in collaboration with” LaMotta. App. 164. In 1976, Frank Petrella and LaMotta assigned their rights in the three works, including renewal rights, to Chartoff-Winkler Productions, Inc. Two years later, re- spondent United Artists Corporation, a subsidiary of respond- ent Metro-Goldwyn-Mayer, Inc. (collectively, MGM), ac- quired the motion picture rights to the book and both screenplays, rights stated by the parties to be “exclusiv[e] and forever, including all periods of copyright and renew- als and extensions thereof.” Id., at 49. In 1980, MGM released, and registered a copyright in, the film Raging Bull, directed by Martin Scorsese and starring Robert De Niro, who won a Best Actor Academy Award for his por- trayal of LaMotta. MGM continues to market the film, and has converted it into formats unimagined in 1980, including DVD and Blu-ray. Frank Petrella died in 1981, during the initial terms of the copyrights in the screenplays and book. As this Court’s decision in Stewart confirmed, Frank Petrella’s renewal rights reverted to his heirs, who could renew the copyrights unburdened by any assignment previously made by the author. See 495 U.S., at 220–221 (relying on 8 PETRELLA v. METRO-GOLDWYN-MAYER, INC. Opinion of the Court Court’s earlier decision in Miller Music Corp. v. Charles N. Daniels, Inc., 362 U.S. 373 (1960)). Plaintiff below, petitioner here, Paula Petrella (Petrella) is Frank Petrella’s daughter. Learning of this Court’s decision in Stewart, Petrella engaged an attorney who, in 1991, renewed the copyright in the 1963 screenplay. Because the copyrights in the 1973 screenplay and the 1970 book were not timely renewed, the infringement claims in this case rest exclusively on the screenplay registered in 1963. Petrella is now sole owner of the copy- right in that work.8 In 1998, seven years after filing for renewal of the copy- right in the 1963 screenplay, Petrella’s attorney informed MGM that Petrella had obtained the copyright to that screenplay. Exploitation of any derivative work, including Raging Bull, the attorney asserted, infringed on the copy- right now vested in Petrella. During the next two years, counsel for Petrella and MGM exchanged letters in which MGM denied the validity of the infringement claims, and Petrella repeatedly threatened to take legal action. B Some nine years later, on January 6, 2009, Petrella filed a copyright infringement suit in the United States District Court for the Central District of California. She alleged that MGM violated and continued to violate her copyright in the 1963 screenplay by using, producing, and distrib- uting Raging Bull, a work she described as derivative of the 1963 screenplay. Petrella’s complaint sought mone- tary and injunctive relief. Because the statute of limita- tions for copyright claims requires commencement of suit “within three years after the claim accrued,” §507(b), —————— 8 Petrella’s attorney filed the renewal application on behalf of Frank Petrella’s heirs. When Petrella’s mother died and her brother assigned his rights to her, Petrella became the sole owner of all rights in the 1963 screenplay. Cite as: 572 U. S. ____ (2014) 9 Opinion of the Court Petrella sought relief only for acts of infringement occur- ring on or after January 6, 2006. No relief, she recognizes, can be awarded for infringing acts prior to that date. MGM moved for summary judgment on several grounds, among them, the equitable doctrine of laches. Petrella’s 18-year delay, from the 1991 renewal of the copyright on which she relied, until 2009, when she commenced suit, MGM maintained, was unreasonable and prejudicial to MGM. See Memorandum of Points and Authorities in Support of Defendants’ Motion for Summary Judgment in No. CV 09–0072 (CD Cal.). The District Court granted MGM’s motion. See App. to Pet. for Cert. 28a–48a. As to the merits of the infringe- ment claims, the court found, disputed issues of material fact precluded summary adjudication. See id., at 34a–42a. Even so, the court held, laches barred Petrella’s complaint. Id., at 42a–48a. Petrella had unreasonably delayed suit by not filing until 2009, the court concluded, and further determined that MGM was prejudiced by the delay. Id., at 42a–46a. In particular, the court stated, MGM had shown “expectations-based prejudice,” because the company had “made significant investments in exploiting the film”; in addition, the court accepted that MGM would encounter “evidentiary prejudice,” because Frank Petrella had died and LaMotta, then aged 88, appeared to have sustained a loss of memory. Id., at 44a–46a.9 The U. S. Court of Appeals for the Ninth Circuit af- firmed the laches-based dismissal. 695 F.3d 946 (2012). Under Ninth Circuit precedent, the Court of Appeals first observed, “[i]f any part of the alleged wrongful conduct occurred outside of the limitations period, courts presume —————— 9 LaMotta,the court noted, “ha[d] suffered myriad blows to his head as a fighter years ago,” and “no longer recognize[d Petrella], even though he ha[d] known her for forty years.” App. to Pet. for Cert. 45a–46a. 10 PETRELLA v. METRO-GOLDWYN-MAYER, INC. Opinion of the Court that the plaintiff ’s claims are barred by laches.” Id., at 951 (internal quotation marks omitted). The presumption was applicable here, the court indicated, because “[t]he statute of limitations for copyright claims in civil cases is three years,” ibid. (citing §507(b)), and Petrella was aware of her potential claims many years earlier (as was MGM), id., at 952. “[T]he true cause of Petrella’s delay,” the court suggested, “was, as [Petrella] admits, that ‘the film hadn’t made money’ [in years she deferred suit].” Id., at 953.10 Agreeing with the District Court, the Ninth Circuit de- termined that MGM had established expectations-based prejudice: the company had made a large investment in Raging Bull, believing it had complete ownership and control of the film. Id., at 953–954.11 Judge Fletcher concurred only because Circuit prece- dent obliged him to do so. Id., at 958. Laches in copyright cases, he observed, is “entirely a judicial creation,” one notably “in tension with Congress’ [provision of a three- year limitations period].” Ibid. We granted certiorari to resolve a conflict among the Circuits on the application of the equitable defense of laches to copyright infringement claims brought within the three-year look-back period prescribed by Congress.12 —————— 10 In her declaration, Petrella stated that MGM told her in 2001 that the film was in “a huge deficit financially,” “would never show a profit,” and, for that reason, “MGM would not continue to send [financial] statements [to her].” App. 234. 11 The Court of Appeals did not consider whether MGM had also shown evidentiary prejudice. 695 F.3d 946, 953 (CA9 2012). 12 See Lyons Partnership L. P. v. Morris Costumes, Inc., 243 F.3d 789, 798 (CA4 2001) (laches defense unavailable in copyright infringement cases, regardless of remedy sought); Peter Letterese, 533 F.3d, at 1320 (“[T]here is a strong presumption [in copyright cases] that a plaintiff’s suit is timely if it is filed before the statute of limitations has run. Only in the most extraordinary circumstances will laches be recognized as a defense.”); Chirco v. Crosswinds Communities, Inc., 474 F.3d 227, 233 (CA6 2007) (in copyright litigation, laches applies only to “the most Cite as: 572 U. S. ____ (2014) 11 Opinion of the Court 570 U. S. ___ (2013). III We consider first whether, as the Ninth Circuit held, laches may be invoked as a bar to Petrella’s pursuit of legal remedies under 17 U.S. C. §504(b). The Ninth Circuit erred, we hold, in failing to recognize that the copyright statute of limitations, §507(b), itself takes ac- count of delay. As earlier observed, see supra, at 5–6, a successful plaintiff can gain retrospective relief only three years back from the time of suit. No recovery may be had for infringement in earlier years. Profits made in those years remain the defendant’s to keep. Brought to bear here, §507(b) directs that MGM’s returns on its invest- ment in Raging Bull in years outside the three-year win- dow (years before 2006) cannot be reached by Petrella. Only by disregarding that feature of the statute, and the separate-accrual rule attending §507(b), see supra, at 4–5, could the Court of Appeals presume that infringing acts occurring before January 6, 2006 bar all relief, monetary and injunctive, for infringement occurring on and after that date. See 695 F.3d, at 951; supra, at 9–10.13 Moreover, if infringement within the three-year look- back period is shown, the Act allows the defendant to —————— compelling of cases”); Jacobsen v. Deseret Book Co., 287 F.3d 936, 950 (CA10 2002) (“Rather than deciding copyright cases on the issue of laches, courts should generally defer to the three-year statute of limita- tions.”); New Era Publications Int’l v. Henry Holt & Co., 873 F.2d 576, 584–585 (CA2 1989) (“severe prejudice, coupled with . . . unconscionable delay . . . mandates denial of . . . injunction for laches and relegation of [plaintiff] to its damages remedy”). Cf. post, at 1, 13 (acknowledging that application of laches should be “extraordinary,” confined to “few and unusual cases”). 13 Assuming Petrella had a winning case on the merits, the Court of Appeals’ ruling on laches would effectively give MGM a cost-free license to exploit Raging Bull throughout the long term of the copyright. The value to MGM of such a free, compulsory license could exceed by far MGM’s expenditures on the film. 12 PETRELLA v. METRO-GOLDWYN-MAYER, INC. Opinion of the Court prove and offset against profits made in that period “de- ductible expenses” incurred in generating those profits. §504(b). In addition, the defendant may prove and offset “elements of profit attributable to factors other than the copyrighted work.” §504(b). The defendant thus may retain the return on investment shown to be attributable to its own enterprise, as distinct from the value created by the infringed work. See Sheldon v. Metro-Goldwyn Pic- tures Corp., 309 U.S. 390, 402, 407 (1940) (equitably apportioning profits to account for independent contribu- tions of infringing defendant). See also infra, at 19–22 (delay in commencing suit as a factor in determining contours of relief appropriately awarded). Last, but hardly least, laches is a defense developed by courts of equity; its principal application was, and re- mains, to claims of an equitable cast for which the Legisla- ture has provided no fixed time limitation. See 1 D. Dobbs, Law of Remedies §2.4(4), p. 104 (2d ed. 1993) (here- inafter Dobbs) (“laches . . . may have originated in equity because no statute of limitations applied, . . . suggest[ing] that laches should be limited to cases in which no statute of limitations applies”). Both before and after the merger of law and equity in 1938,14 this Court has cautioned against invoking laches to bar legal relief. See Holmberg v. Armbrecht, 327 U.S. 392, 395, 396 (1946) (in actions at law, “[i]f Congress explicitly puts a limit upon the time for enforcing a right which it created, there is an end of the matter,” but “[t]raditionally . . . , statutes of limitation are not controlling measures of equitable relief ”); Merck & Co. v. Reynolds, 559 U.S. 633, 652 (2010) (quoting, for its current relevance, statement in United States v. Mack, 295 U.S. 480, 489 (1935), that “[l]aches within the term of —————— 14 See Fed. Rule Civ. Proc. 2 (“There is one form of action—the civil action.”); Rule 8(c) (listing among affirmative defenses both “laches” and “statute of limitations”). Cite as: 572 U. S. ____ (2014) 13 Opinion of the Court the statute of limitations is no defense [to an action] at law”); County of Oneida v. Oneida Indian Nation of N. Y., 470 U.S. 226, 244, n. 16 (1985) (“[A]pplication of the equitable defense of laches in an action at law would be novel indeed.”).15 Because we adhere to the position that, in face of a statute of limitations enacted by Congress, laches cannot be invoked to bar legal relief, the dissent thinks we “plac[e] insufficient weight upon the rules and practice of modern litigation.” Post, at 12. True, there has been, since 1938, only “one form of action—the civil action.” Fed. Rule Civ. Proc. 2. But “the substantive and remedial principles [applicable] prior to the advent of the federal rules [have] not changed.” 4 C. Wright & A. Miller, Fed- eral Practice and Procedure §1043, p. 177 (3d ed. 2002). Holmberg, Merck, and Oneida so illustrate. The dissent presents multiple citations, see post, at 1, 3–4, 7–8, 10–11, many of them far afield from the issue at hand, others obscuring what the cited decisions in fact ruled. Compare, e.g., post, at 1, 11, with infra, at 20–21 (describing Chirco —————— 15 In contrast to the Copyright Act, the Lanham Act, which governs trademarks, contains no statute of limitations, and expressly provides for defensive use of “equitable principles, including laches.” 15 U.S. C. §1115(b)(9). But cf. post, at 8, 11 (citing Hot Wax, Inc. v. Turtle Wax, Inc., 191 F.3d 813 (CA7 1999), but failing to observe that Lanham Act contains no statute of limitations). The Patent Act states: “[N]o recovery shall be had for any infringe- ment committed more than six years prior to the filing of the com- plaint.” 35 U.S. C. §286. The Act also provides that “[n]onin- fringement, absence of liability for infringement or unenforceability” may be raised “in any action involving the validity or infringement of a patent.” §282(b) (2012 ed.). Based in part on §282 and com- mentary thereon, legislative history, and historical practice, the Fed- eral Circuit has held that laches can bar damages incurred prior to the commencement of suit, but not injunctive relief. A. C. Aukerman Co. v. R. L. Chaides Constr. Co., 960 F.2d 1020, 1029–1031, 1039–1041 (1992) (en banc). We have not had occasion to review the Federal Circuit’s position. 14 PETRELLA v. METRO-GOLDWYN-MAYER, INC. Opinion of the Court v. Crosswinds Communities, Inc., 474 F.3d 227 (CA6 2007)); post, at 1, 10–11, with infra, at 15, n. 16 (describ- ing National Railroad Passenger Corporation v. Morgan, 536 U.S. 101 (2002)); post, at 8, with infra, at 15, n. 16 (describing Patterson v. Hewitt, 195 U.S. 309 (1904)). Yet tellingly, the dissent has come up with no case in which this Court has approved the application of laches to bar a claim for damages brought within the time allowed by a federal statute of limitations. There is nothing at all “differen[t],” see post, at 12, about copyright cases in this regard. IV We turn now to MGM’s principal arguments regarding the contemporary scope of the laches defense, all of them embraced by the dissent. A Laches is listed among affirmative defenses, along with, but discrete from, the statute of limitations, in Federal Rule of Civil Procedure 8(c). Accordingly, MGM main- tains, the plea is “available . . . in every civil action” to bar all forms of relief. Tr. of Oral Arg. 43; see Brief for Re- spondents 40. To the Court’s question, could laches apply where there is an ordinary six-year statute of limitations, MGM’s counsel responded yes, case-specific circumstances might warrant a ruling that a suit brought in year five came too late. Tr. of Oral Arg. 52; see id., at 41. The expansive role for laches MGM envisions careens away from understandings, past and present, of the essen- tially gap-filling, not legislation-overriding, office of laches. Nothing in this Court’s precedent suggests a doctrine of such sweep. Quite the contrary, we have never applied laches to bar in their entirety claims for discrete wrongs occurring within a federally prescribed limitations pe- Cite as: 572 U. S. ____ (2014) 15 Opinion of the Court riod.16 Inviting individual judges to set a time limit other than the one Congress prescribed, we note, would tug against the uniformity Congress sought to achieve when it enacted §507(b). See supra, at 3–4. B MGM observes that equitable tolling “is read into every federal statute of limitation,” Holmberg, 327 U.S., at 397, and asks why laches should not be treated similarly. See Brief for Respondents 23–26; post, at 7–8. Tolling, which lengthens the time for commencing a civil action in appro- priate circumstances,17 applies when there is a statute of —————— 16 MGM pretends otherwise, but the cases on which it relies do not carry the load MGM would put on them. Morgan, described supra, at 6, n. 7, is apparently MGM’s best case, for it is cited 13 times in MGM’s brief. See Brief for Respondents 8, 9, 14, 16, 18, 19, 25, 31, 34, 35, 36, 40, 47; post, at 1, 7, 10–11. Morgan, however, does not so much as hint that laches may bar claims for discrete wrongs, all of them occurring within a federal limitations period. Part II–A of that opinion, dealing with the separate-accrual rule, held that “[e]ach discrete discriminatory act starts a new clock for filing charges alleging that act,” regardless of whether “past acts” are time barred. 536 U.S., at 113. Parts II–B and II–C of the opinion then distinguished separately accruing wrongs from hostile-work-environment claims, cumulative in effect and extending over long periods of time. Id., at 115–117, 121. Laches could be in- voked, the Court reasoned, to limit the continuing violation doctrine’s potential to rescue untimely claims, not claims accruing separately within the limitations period. Bay Area Laundry, described, along with Morgan, supra, at 6, n. 7, is similarly featured by MGM. See also post, at 7–8, 11. But that opinion considered laches only in the context of a federal statute calling for action “[a]s soon as practicable.” 29 U.S. C. §1399(b)(1); see 522 U.S., at 205. Patterson v. Hewitt, 195 U.S. 309 (1904), described by MGM as a case resembling Petrella’s, see Tr. of Oral Arg. 32–33, 53, barred equitable claims that were timely under state law. When state law was the reference, federal courts sometimes applied laches as a further control. See supra, at 3–4; Russel v. Todd, 309 U.S. 280, 288, n. 1 (1940) (“Laches may bar equitable remedy before the local statute has run.”). No federal statute of limitations figured in Patterson. 17 E.g., a party’s infancy or mental disability, absence of the defend- 16 PETRELLA v. METRO-GOLDWYN-MAYER, INC. Opinion of the Court limitations; it is, in effect, a rule of interpretation tied to that limit. See Young v. United States, 535 U.S. 43, 49– 50 (2002); Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 464 (1975).18 Laches, in contrast, originally served as a guide when no statute of limitations controlled the claim; it can scarcely be described as a rule for inter- preting a statutory prescription. That is so here, because the statute, §507(b), makes the starting trigger an infring- ing act committed three years back from the commence- ment of suit, while laches, as conceived by the Ninth Circuit and advanced by MGM, makes the presumptive trigger the defendant’s initial infringing act. See 695 F.3d, at 951; Brief for United States 16. C MGM insists that the defense of laches must be avail- able to prevent a copyright owner from sitting still, doing nothing, waiting to see what the outcome of an alleged infringer’s investment will be. See Brief for Respondents 48. In this case, MGM stresses, “[Petrella] conceded that she waited to file because ‘the film was deeply in debt and in the red and would probably never recoup.’ ” Id., at 47 (quoting from App. 110). The Ninth Circuit similarly faulted Petrella for waiting to sue until the film Raging Bull “made money.” 695 F.3d, at 953 (internal quotation marks omitted). See also post, at 3–6 (deploring plaintiffs who wait to see whether the allegedly infringing work makes money). It is hardly incumbent on copyright owners, however, to challenge each and every actionable infringement. And —————— ant from the jurisdiction, fraudulent concealment. See S. Rep. No. 1014, 85th Cong., 1st Sess., 2–3 (1957) (hereinafter Senate Report). 18 The legislative history to which the dissent refers, post, at 7, speaks of “equitable situations on which the statute of limitations is generally suspended,” Senate Report 3, and says nothing about laches shrinking the time Congress allowed. Cite as: 572 U. S. ____ (2014) 17 Opinion of the Court there is nothing untoward about waiting to see whether an infringer’s exploitation undercuts the value of the copy- righted work, has no effect on the original work, or even complements it. Fan sites prompted by a book or film, for example, may benefit the copyright owner. See Wu, Tol- erated Use, 31 Colum. J. L. & Arts 617, 619–620 (2008). Even if an infringement is harmful, the harm may be too small to justify the cost of litigation. If the rule were, as MGM urges, “sue soon, or forever hold your peace,” copyright owners would have to mount a federal case fast to stop seemingly innocuous infringe- ments, lest those infringements eventually grow in magni- tude. Section 507(b)’s three-year limitations period, how- ever, coupled to the separate-accrual rule, see supra, at 3–6, avoids such litigation profusion. It allows a copyright owner to defer suit until she can estimate whether litiga- tion is worth the candle. She will miss out on damages for periods prior to the three-year look-back, but her right to prospective injunctive relief should, in most cases, remain unaltered.19 D MGM points to the danger that evidence needed or useful to defend against liability will be lost during a copyright owner’s inaction. Brief for Respondents 37–38; see post, at 2–4.20 Recall, however, that Congress provided for reversionary renewal rights exercisable by an author’s heirs, rights that can be exercised, at the earliest for pre- —————— 19 The dissent worries that a plaintiff might sue for profits “every three years . . . until the copyright expires.” Post, at 5; see post, at 2. That suggestion neglects to note that a plaintiff who proves infringe- ment will likely gain forward-looking injunctive relief stopping the defendant’s repetition of infringing acts. 20 As earlier noted, see supra, at 10, n. 11, the Court of Appeals did not reach the question whether evidentiary prejudice existed. 695 F.3d, at 953. 18 PETRELLA v. METRO-GOLDWYN-MAYER, INC. Opinion of the Court 1978 copyrights, 28 years after a work was written and copyrighted. See, supra, at 2–3. At that time, the author, and perhaps other witnesses to the creation of the work, will be dead. See supra, at 7. Congress must have been aware that the passage of time and the author’s death could cause a loss or dilution of evidence. Congress chose, nonetheless, to give the author’s family “a second chance to obtain fair remuneration.” Stewart, 495 U.S., at 220. Moreover, a copyright plaintiff bears the burden of proving infringement. See 3 W. Patry, Copyright §9.4, p. 9–18 (2013) (hereinafter Patry) (“As in other civil litiga- tion, a copyright owner bears the burden of establishing a prima facie case.”). But cf. post, at 4 (overlooking plain- tiff ’s burden to show infringement and the absence of any burden upon the defendant “to prove that it did not in- fringe”). Any hindrance caused by the unavailability of evidence, therefore, is at least as likely to affect plaintiffs as it is to disadvantage defendants. That is so in cases of the kind Petrella is pursuing, for a deceased author most probably would have supported his heir’s claim. The registration mechanism, we further note, reduces the need for extrinsic evidence. Although registration is “permissive,” both the certificate and the original work must be on file with the Copyright Office before a copy- right owner can sue for infringement. §§408(b), 411(a). Key evidence in the litigation, then, will be the certificate, the original work, and the allegedly infringing work. And the adjudication will often turn on the factfinder’s direct comparison of the original and the infringing works, i.e., on the factfinder’s “good eyes and common sense” in com- paring the two works’ “total concept and overall feel.” Peter F. Gaito Architecture, LLC v. Simone Development Corp., 602 F.3d 57, 66 (CA2 2010) (internal quotation marks omitted). Cite as: 572 U. S. ____ (2014) 19 Opinion of the Court E Finally, when a copyright owner engages in intention- ally misleading representations concerning his abstention from suit, and the alleged infringer detrimentally relies on the copyright owner’s deception, the doctrine of estoppel may bar the copyright owner’s claims completely, elimi- nating all potential remedies. See 6 Patry §20:58, at 20– 110 to 20–112.21 The test for estoppel is more exacting than the test for laches, and the two defenses are differ- ently oriented. The gravamen of estoppel, a defense long recognized as available in actions at law, see Wehrman v. Conklin, 155 U.S. 314, 327 (1894), is misleading and consequent loss, see 6 Patry §20:58, at 20–110 to 20–112. Delay may be involved, but is not an element of the de- fense. For laches, timeliness is the essential element. In contrast to laches, urged by MGM entirely to override the statute of limitations Congress prescribed, estoppel does not undermine Congress’ prescription, for it rests on mis- leading, whether engaged in early on, or later in time. Stating that the Ninth Circuit “ha[d] taken a wrong turn in its formulation and application of laches in copy- right cases,” Judge Fletcher called for fresh consideration of the issue. 695 F.3d, at 959. “A recognition of the dis- tinction between . . . estoppel and laches,” he suggested, “would be a good place to start.” Ibid. We agree. V The courts below summarily disposed of Petrella’s case based on laches, preventing adjudication of any of her claims on the merits and foreclosing the possibility of any form of relief. That disposition, we have explained, was erroneous. Congress’ time provisions secured to authors a —————— 21 Although MGM, in its answer to Petrella’s complaint, separately raised both laches and estoppel as affirmative defenses, see Defendants’ Answer to Plaintiff’s Complaint in No. CV 09–0072 (CD Cal.), the courts below did not address the estoppel plea. 20 PETRELLA v. METRO-GOLDWYN-MAYER, INC. Opinion of the Court copyright term of long duration, and a right to sue for infringement occurring no more than three years back from the time of suit. That regime leaves “little place” for a doctrine that would further limit the timeliness of a copyright owner’s suit. See 1 Dobbs §2.6(1), at 152. In extraordinary circumstances, however, the consequences of a delay in commencing suit may be of sufficient magni- tude to warrant, at the very outset of the litigation, cur- tailment of the relief equitably awardable. Chirco v. Crosswinds Communities, Inc., 474 F.3d 227 (CA6 2007), is illustrative. In that case, the defendants were alleged to have used without permission, in planning and building a housing development, the plaintiffs’ copy- righted architectural design. Long aware of the defend- ants’ project, the plaintiffs took no steps to halt the hous- ing development until more than 168 units were built, 109 of which were occupied. Id., at 230. Although the action was filed within §507(b)’s three-year statute of limitations, the District Court granted summary judgment to the defendants, dismissing the entire case on grounds of laches. The trial court’s rejection of the entire suit could not stand, the Court of Appeals explained, for it was not within the Judiciary’s ken to debate the wisdom of §507(b)’s three-year look-back prescription. Id., at 235. Neverthe- less, the Court of Appeals affirmed the District Court’s judgment to this extent: The plaintiffs, even if they might succeed in proving infringement of their copyrighted de- sign, would not be entitled to an order mandating destruc- tion of the housing project. That relief would be inequit- able, the Sixth Circuit held, for two reasons: the plaintiffs knew of the defendants’ construction plans before the de- fendants broke ground, yet failed to take readily available measures to stop the project; and the requested relief would “work an unjust hardship” upon the defendants and innocent third parties. Id., at 236. See also New Era Publications Int’l v. Henry Holt & Co., 873 F.2d 576, 584– Cite as: 572 U. S. ____ (2014) 21 Opinion of the Court 585 (CA2 1989) (despite awareness since 1986 that book containing allegedly infringing material would be pub- lished in the United States, copyright owner did not seek a restraining order until 1988, after the book had been printed, packed, and shipped; as injunctive relief “would [have] result[ed] in the total destruction of the work,” the court “relegat[ed plaintiff] to its damages remedy”). In sum, the courts below erred in treating laches as a complete bar to Petrella’s copyright infringement suit. The action was commenced within the bounds of §507(b), the Act’s time-to-sue prescription, and does not present extraordinary circumstances of the kind involved in Chirco and New Era. Petrella notified MGM of her copyright claims before MGM invested millions of dollars in creating a new edition of Raging Bull. And the equitable relief Petrella seeks—e.g., disgorgement of unjust gains and an injunction against future infringement—would not result in “total destruction” of the film, or anything close to it. See New Era, 873 F.2d, at 584. MGM released Raging Bull more than three decades ago and has marketed it continuously since then. Allowing Petrella’s suit to go forward will put at risk only a fraction of the income MGM has earned during that period and will work no unjust hardship on innocent third parties, such as consumers who have purchased copies of Raging Bull. Cf. Chirco, 474 F.3d, at 235–236 (destruction remedy would have ousted families from recently purchased homes). The circum- stances here may or may not (we need not decide) warrant limiting relief at the remedial stage, but they are not sufficiently extraordinary to justify threshold dismissal. Should Petrella ultimately prevail on the merits, the District Court, in determining appropriate injunctive relief and assessing profits, may take account of her delay in commencing suit. See supra, at 1–2, 11–12. In doing so, however, that court should closely examine MGM’s alleged 22 PETRELLA v. METRO-GOLDWYN-MAYER, INC. Opinion of the Court reliance on Petrella’s delay.22 This examination should take account of MGM’s early knowledge of Petrella’s claims, the protection MGM might have achieved through pursuit of a declaratory judgment action, the extent to which MGM’s investment was protected by the separate- accrual rule, the court’s authority to order injunctive relief “on such terms as it may deem reasonable,” §502(a), and any other considerations that would justify adjusting injunctive relief or profits. See Haas v. Leo Feist, Inc., 234 F. 105, 107–108 (SDNY 1916) (adjudicating copyright infringement suit on the merits and decreeing injunctive relief, but observing that, in awarding profits, account may be taken of copyright owner’s inaction until infringer had spent large sums exploiting the work at issue). See also Tr. of Oral Arg. 23 (Government observation that, in fashioning equitable remedies, court has considerable leeway; it could, for example, allow MGM to continue using Raging Bull as a derivative work upon payment of a reasonable royalty to Petrella). Whatever adjustments may be in order in awarding injunctive relief, and in ac- counting for MGM’s gains and profits, on the facts thus far presented, there is no evident basis for immunizing MGM’s present and future uses of the copyrighted work, free from any obligation to pay royalties. * * * For the reasons stated, the judgment of the United States Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings con- sistent with this opinion. It is so ordered. —————— 22 While reliance or its absence may figure importantly in this case, we do not suggest that reliance is in all cases a sine qua non for ad- justment of injunctive relief or profits. Cite as: 572 U. S. ____ (2014) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 12–1315 _________________ PAULA PETRELLA, PETITIONER v. METRO- GOLDWYN-MAYER, INC., ET AL.

The Copyright Act provides that “[n]o civil action shall be maintained under the [Act] unless it is commenced within three years after the claim accrued.” 17 U.S. C. This case presents the question whether the equitable defense of laches (unreasonable, prejudicial delay in commencing suit) may bar relief on a copyright infringement claim brought within three-year limitations period. Section 507(b), it is undisputed, bars relief of any kind for conduct occurring prior to the three- year limitations period. To the extent that an infringe- ment suit seeks relief solely for conduct occurring within the limitations period, however, courts are not at liberty to jettison Congress’ judgment on the timeliness of suit. Laches, we hold, cannot be invoked to preclude adjudica- tion of a claim for damages brought within the three-year window. As to equitable relief, in extraordinary circum- stances, laches may bar at the very threshold the particu- lar relief requested by the plaintiff. And a plaintiff ’s delay can always be brought to bear at the remedial stage, in determining appropriate injunctive relief, and in assessing 2 PETRELLA v. METRO-GOLDWYN-MAYER, INC. Opinion of the Court the “profits of the infringer attributable to the in- fringement.” Petitioner Paula Petrella, in her suit for copyright in- fringement, sought no relief for conduct occurring outside three-year limitations period. Nevertheless, the courts below held that laches barred her suit in its en- tirety, without regard to the currency of the conduct of which Petrella complains. That position, we hold, is con- trary to and this Court’s precedent on the province of laches. I The Copyright Act (Act), 17 U.S. C. et seq., grants copyright protection to original works of authorship. Four aspects of copyright law bear explanation at the outset. First, the length of a copyright term. Under the Act, a copyright “vests initially in the author or authors of the work,” who may transfer ownership to a third party. The Act confers on a copyright owner certain exclusive rights, including the rights to reproduce and distribute the work and to develop and market derivative works. Copyrighted works published before 1978—as was the work at issue—are protected for an initial period of 28 years, which may be—and in this case was—extended for a renewal period of up to 67 years. From and after January 1, 1978, works are generally protected from the date of creation until 70 years after the author’s death. —————— 1 As infringement remedies, the Copyright Act provides for injunc- tions, impoundment and disposition of infringing articles, damages and profits, costs and attorney’s fees, Like other restitutional remedies, recovery of profits “is not easily characterized as legal or equitable,” for it is an “amalgamation of rights and remedies drawn from both systems.” Restatement (Third) of Restitution and Unjust Enrichment Comment b, p. 28 (0). Given the “protean character” of the profits-recovery remedy, see Comment c, at 30, we regard as appropriate its treatment as “equitable” in this case. Cite as: 572 U. S. (4) 3 Opinion of the Court Second, copyright inheritance. For works copyrighted under the pre-1978 regime in which an initial period of protection may be followed by a renewal period, Congress provided that the author’s heirs inherit the renewal rights. See We held in that if an author who has assigned her rights away “dies before the renewal period, then the assignee may continue to use the original work [to produce a derivative work] only if the author’s successor transfers the renewal rights to the assignee.”2 Third, remedies. The Act provides a variety of civil remedies for infringement, both equitable and legal. See A court may issue an injunction “on such terms as it may deem reasonable to prevent or restrain infringement of a copyright.” At the election of the copyright owner, a court may also award either (1) “the copyright owner’s actual damages and any additional profits of the infringer,” which petitioner seeks in the instant case, or (2) statutory damages within a defined range, Fourth, and most significant here, the statute of limita- tions. Until 1957, federal copyright law did not include a statute of limitations for civil suits. Federal courts there- fore used analogous state statutes of limitations to deter- mine the timeliness of infringement claims. See S. Rep. No. 1014, 85th Cong., 1st Sess., 2 (1957) (hereinafter Senate Report). And they sometimes invoked laches to abridge the state-law prescription. As explained in Team- sters & Employers Welfare Trust of : “When Con- gress fails to enact a statute of limitations, a [federal] —————— 2 For post-1978 works, heirs still have an opportunity to recapture rights of the author. See 3 M. Nimmer & D. Nimmer, Copyright p. 11–4 (3) (hereinafter Nimmer). 4 PETRELLA v. METRO-GOLDWYN-MAYER, INC. Opinion of the Court court that borrows a state statute of limitations but per- mits it to be abridged by the doctrine of laches is not in- vading congressional prerogatives. It is merely filling a legislative hole.” (internal citation omitted). In 1957, Congress addressed the matter and filled the hole; it prescribed a three-year look-back limitations period for all civil claims arising under the Copyright Act. See Act of Sept. 7, 1957, Pub. L. 85–313, 17 U.S. C. (1958 ed.). The provision, as already noted, reads: “No civil action shall be maintained under the provisions of this title unless it is commenced within three years after the claim accrued.” 3 The federal limitations prescription governing copyright suits serves two purposes: (1) to render uniform and cer- tain the time within which copyright claims could be pursued; and (2) to prevent the forum shopping invited by disparate state limitations periods, which ranged from one to eight years. Senate Report 2; see H. R. Rep. No. 2419, 84th Cong., 2d Sess., 2 (1956). To comprehend how the Copyright Act’s limitations period works, one must under- stand when a copyright infringement claim accrues. A claim ordinarily accrues “when [a] plaintiff has a complete and present cause of action.” Bay Area Laundry and Dry Cleaning Pension Trust (internal quotation marks omitted). In other words, the limitations period generally begins to run at the point when “the plaintiff can file suit and obtain relief.” A copyright claim thus arises or “accrue[s]” when an infringing act occurs.4 —————— 3 The Copyright Act was pervasively revised in 1976, but the three- year look-back statute of limitations has remained materially un- changed. See Act of Oct. 19, 1976, 4 Although we have not passed on the question, nine Courts of Ap- peals have adopted, as an alternative to the incident of injury rule, a “discovery rule,” which starts the limitations period when “the plaintiff discovers, or with due diligence should have discovered, the injury that Cite as: 572 U. S. (4) 5 Opinion of the Court It is widely recognized that the separate-accrual rule attends the copyright statute of limitations.5 Under that rule, when a defendant commits successive violations, the statute of limitations runs separately from each violation. Each time an infringing work is reproduced or distributed, the infringer commits a new wrong. Each wrong gives rise to a discrete “claim” that “accrue[s]” at the time the wrong occurs.6 In short, each infringing act starts a new limita- tions period. See (CA2 1992) (“Each act of infringement is a distinct harm giving rise to an independent claim for relief.”). Under the Act’s three-year provision, an infringement is actionable within three years, and only three years, of its occurrence. And the infringer is insulated from liability for earlier infringements of the same work. See 3 M. Nimmer & D. Nimmer, Copyright p. 12– 150.4 (3) (“If infringement occurred within three years prior to filing, the action will not be barred even if prior —————— forms the basis for the claim.” William A. Graham Co. v. Haughey, 568 F.3d 425, 433 (CA3 2009) (internal quotation marks omitted). See also 6 W. Patry, Copyright p. 20–28 (3) (hereinafter Patry) (“The overwhelming majority of courts use discovery accrual in copyright cases.”). 5 See generally at 20–44; 3 Nimmer at 12– 150.2 to 12–150.4. See also, e.g., William A. Graham Co., 568 F.3d, at 433; Peter & Assoc., ; Bridgeport Music, ; Mak- edwde Publishing ; Roley v. New World Pictures, Ltd., 6 Separately accruing harm should not be confused with harm from past violations that are continuing. Compare (for separately accruing harm, each new act must cause “harm [to the plaintiff] over and above the harm that the earlier acts caused”), with Havens Realty (“[W]here a plaintiff challenges an unlawful practice that continues into the limitations period, the com- plaint is timely when it is filed within [the limitations period, measured from] the last asserted occurrence of that practice.” (footnote omitted)). 6 PETRELLA v. METRO-GOLDWYN-MAYER, INC. Opinion of the Court infringements by the same party as to the same work are barred because they occurred more than three years pre- viously.”). Thus, when a defendant has engaged (or is alleged to have engaged) in a series of discrete infringing acts, the copyright holder’s suit ordinarily will be timely under with respect to more recent acts of in- fringement (i.e., acts within the three-year window), but untimely with respect to prior acts of the same or similar kind.7 In sum, Congress provided two controlling time pre- scriptions: the copyright term, which endures for decades, and may pass from one generation to another; and limitations period, which allows plaintiffs during that lengthy term to gain retrospective relief running only —————— 7Acase arising outside of the copyright context is illustrative. In Bay Area Laundry and Dry Cleaning Pension Trust an employer was delinquent in making a series of scheduled payments to an underfunded pension plan. See –199. The trustees filed suit just over six years after the first missed payment, barely outside of the applicable six-year statute of limitations. See Because the first missed payment in the series fell outside the statute of limitations, the employer argued that the subsequent missed payments were also time See at 206. We rejected that argument. The remaining claims were timely, we held, because “each missed payment create[d] a separate cause of action with its own six-year limitations period.” Cf. Klehr, 521 U. S., at (for civil Racketeer Influenced and Corrupt Organizations Act claims, plaintiff may recover for acts occurring within the limita- tions period, but may not use an “independent, new predicate act as a bootstrap to recover for injuries caused by other earlier predicate acts that took place outside the limitations period”); National Railroad Passenger (distinguishing discrete acts, each independently actionable, from conduct “cumulative [in] effect,” e.g., hostile environment claims pur- sued under Title VII of the Civil Rights Act of 1964, 42 U.S. C. et seq.; “in direct contrast to discrete acts, a single [instance of hostility] may not be actionable on its own”). But cf. post, at 10–11 (ignoring the distinction took care to draw between discrete acts inde- pendently actionable and conduct cumulative in effect). Cite as: 572 U. S. (4) 7 Opinion of the Court three years back from the date the complaint was filed. II A The allegedly infringing work in this case is the criti- cally acclaimed motion picture Raging Bull, based on the life of boxing champion Jake LaMotta. After retiring from the ring, LaMotta worked with his longtime friend, Frank Petrella, to tell the story of the boxer’s career. Their venture resulted in three copyrighted works: two screen- plays, one registered in 1963, the other in 1973, and a book, registered in 1970. This case centers on the screen- play registered in 1963. The registration identified Frank Petrella as sole author, but also stated that the screenplay was written “in collaboration with” LaMotta. App. 164. In 1976, Frank Petrella and LaMotta assigned their rights in the three works, including renewal rights, to Chartoff-Winkler Productions, Inc. Two years later, re- spondent United Artists Corporation, a subsidiary of respond- ent Metro-Goldwyn-Mayer, Inc. (collectively, MGM), ac- quired the motion picture rights to the book and both screenplays, rights stated by the parties to be “exclusiv[e] and forever, including all periods of copyright and renew- als and extensions thereof.” In 1980, MGM released, and registered a copyright in, the film Raging Bull, directed by Martin Scorsese and starring Robert De Niro, who won a Best Actor Academy Award for his por- trayal of LaMotta. MGM continues to market the film, and has converted it into formats unimagined in 1980, including DVD and Blu-ray. Frank Petrella died in 1981, during the initial terms of the copyrights in the screenplays and book. As this Court’s decision in confirmed, Frank Petrella’s renewal rights reverted to his heirs, who could renew the copyrights unburdened by any assignment previously made by the author. See –221 ). Plaintiff below, petitioner here, Paula Petrella (Petrella) is Frank Petrella’s daughter. Learning of this Court’s decision in Petrella engaged an attorney who, in 1991, renewed the copyright in the 1963 screenplay. Because the copyrights in the 1973 screenplay and the 1970 book were not timely renewed, the infringement claims in this case rest exclusively on the screenplay registered in 1963. Petrella is now sole owner of the copy- right in that work.8 In 1998, seven years after filing for renewal of the copy- right in the 1963 screenplay, Petrella’s attorney informed MGM that Petrella had obtained the copyright to that screenplay. Exploitation of any derivative work, including Raging Bull, the attorney asserted, infringed on the copy- right now vested in Petrella. During the next two years, counsel for Petrella and MGM exchanged letters in which MGM denied the validity of the infringement claims, and Petrella repeatedly threatened to take legal action. B Some nine years later, on January 6, 2009, Petrella filed a copyright infringement suit in the United States District Court for the Central District of California. She alleged that MGM violated and continued to violate her copyright in the 1963 screenplay by using, producing, and distrib- uting Raging Bull, a work she as derivative of the 1963 screenplay. Petrella’s complaint sought mone- tary and injunctive relief. Because the statute of limita- tions for copyright claims requires commencement of suit “within three years after the claim accrued,” —————— 8 Petrella’s attorney filed the renewal application on behalf of Frank Petrella’s heirs. When Petrella’s mother died and her brother assigned his rights to her, Petrella became the sole owner of all rights in the 1963 screenplay. Cite as: 572 U. S. (4) 9 Opinion of the Court Petrella sought relief only for acts of infringement occur- ring on or after January 6, 2006. No relief, she recognizes, can be awarded for infringing acts prior to that date. MGM moved for summary judgment on several grounds, among them, the equitable doctrine of laches. Petrella’s 18-year delay, from the 1991 renewal of the copyright on which she relied, until 2009, when she commenced suit, MGM maintained, was unreasonable and prejudicial to MGM. See Memorandum of Points and Authorities in Support of Defendants’ Motion for Summary Judgment in No. CV 09–0072 (CD Cal.). The District Court granted MGM’s motion. See App. to Pet. for Cert. 28a–48a. As to the merits of the infringe- ment claims, the court found, disputed issues of material fact precluded summary adjudication. See at 34a–42a. Even so, the court held, laches barred Petrella’s complaint. at 42a–48a. Petrella had unreasonably delayed suit by not filing until 2009, the court concluded, and further determined that MGM was prejudiced by the delay. at 42a–46a. In particular, the court stated, MGM had shown “expectations-based prejudice,” because the company had “made significant investments in exploiting the film”; in addition, the court accepted that MGM would encounter “evidentiary prejudice,” because Frank Petrella had died and LaMotta, then aged 88, appeared to have sustained a loss of memory. at 44a–46a.9 The U. S. Court of Appeals for the Ninth Circuit af- firmed the laches-based dismissal. (2). Under Ninth Circuit precedent, the Court of Appeals first observed, “[i]f any part of the alleged wrongful conduct occurred outside of the limitations period, courts presume —————— 9 LaMotta,the court noted, “ha[d] suffered myriad blows to his head as a fighter years ago,” and “no longer recognize[d Petrella], even though he ha[d] known her for forty years.” App. to Pet. for Cert. 45a–46a. 10 PETRELLA v. METRO-GOLDWYN-MAYER, INC. Opinion of the Court that the plaintiff ’s claims are barred by laches.” at 951 (internal quotation marks omitted). The presumption was applicable here, the court indicated, because “[t]he statute of limitations for copyright claims in civil cases is three years,” (citing ), and Petrella was aware of her potential claims many years earlier (as was MGM), “[T]he true cause of Petrella’s delay,” the court suggested, “was, as [Petrella] admits, that ‘the film hadn’t made money’ [in years she deferred suit].”10 Agreeing with the District Court, the Ninth Circuit de- termined that MGM had established expectations-based prejudice: the company had made a large investment in Raging Bull, believing it had complete ownership and control of the film. –954.11 Judge Fletcher concurred only because Circuit prece- dent obliged him to do so. Laches in copyright cases, he observed, is “entirely a judicial creation,” one notably “in tension with Congress’ [provision of a three- year limitations period].” We granted certiorari to resolve a conflict among the Circuits on the application of the equitable defense of laches to copyright infringement claims brought within the three-year look-back period prescribed by Congress.12 —————— 10 In her declaration, Petrella stated that MGM told her in 2001 that the film was in “a huge deficit financially,” “would never show a profit,” and, for that reason, “MGM would not continue to send [financial] statements [to her].” App. 234. 11 The Court of Appeals did not consider whether MGM had also shown evidentiary prejudice. (CA9 2). 12 See Lyons Partnership L. 798 (CA4 2001) (laches defense unavailable in copyright infringement cases, regardless of remedy sought); Peter (“[T]here is a strong presumption [in copyright cases] that a plaintiff’s suit is timely if it is filed before the statute of limitations has run. Only in the most extraordinary circumstances will laches be recognized as a defense.”); (CA6 2007) (in copyright litigation, laches applies only to “the most Cite as: 572 U. S. (4) 11 Opinion of the Court 570 U. S. (3). III We consider first whether, as the Ninth Circuit held, laches may be invoked as a bar to Petrella’s pursuit of legal remedies under 17 U.S. C. The Ninth Circuit erred, we hold, in failing to recognize that the copyright statute of limitations, itself takes ac- count of delay. As earlier observed, see at 5–6, a successful plaintiff can gain retrospective relief only three years back from the time of suit. No recovery may be had for infringement in earlier years. Profits made in those years remain the defendant’s to keep. Brought to bear here, directs that MGM’s returns on its invest- ment in Raging Bull in years outside the three-year win- dow (years before 2006) cannot be reached by Petrella. Only by disregarding that feature of the statute, and the separate-accrual rule attending see at 4–5, could the Court of Appeals presume that infringing acts occurring before January 6, 2006 bar all relief, monetary and injunctive, for infringement occurring on and after that date. See ; at 9–10.13 Moreover, if infringement within the three-year look- back period is shown, the Act allows the defendant to —————— compelling of cases”); (“Rather than deciding copyright cases on the issue of laches, courts should generally defer to the three-year statute of limita- tions.”); New Publications 584–585 (CA2 1989) (“severe prejudice, coupled with unconscionable delay mandates denial of injunction for laches and relegation of [plaintiff] to its damages remedy”). Cf. post, at 1, 13 (acknowledging that application of laches should be “extraordinary,” confined to “few and unusual cases”). 13 Assuming Petrella had a winning case on the merits, the Court of Appeals’ ruling on laches would effectively give MGM a cost-free license to exploit Raging Bull throughout the long term of the copyright. The value to MGM of such a free, compulsory license could exceed by far MGM’s expenditures on the film. 12 PETRELLA v. METRO-GOLDWYN-MAYER, INC. Opinion of the Court prove and offset against profits made in that period “de- ductible expenses” incurred in generating those profits. In addition, the defendant may prove and offset “elements of profit attributable to factors other than the copyrighted work.” The defendant thus may retain the return on investment shown to be attributable to its own enterprise, as distinct from the value created by the infringed work. See (equitably apportioning profits to account for independent contribu- tions of infringing defendant). See also infra, at 19–22 (delay in commencing suit as a factor in determining contours of relief appropriately awarded). Last, but hardly least, laches is a defense developed by courts of equity; its principal application was, and re- mains, to claims of an equitable cast for which the Legisla- ture has provided no fixed time limitation. See 1 D. Dobbs, Law of Remedies p. 104 (2d ed. 1993) (here- inafter Dobbs) (“laches may have originated in equity because no statute of limitations applied, suggest[ing] that laches should be limited to cases in which no statute of limitations applies”). Both before and after the merger of law and equity in 1938,14 this Court has cautioned against invoking laches to bar legal relief. See v. Armbrecht, (in actions at law, “[i]f Congress explicitly puts a limit upon the time for enforcing a right which it created, there is an end of the matter,” but “[t]raditionally statutes of limitation are not controlling measures of equitable relief ”); Merck & Co. v. Reynolds, (0) that “[l]aches within the term of —————— 14 See Fed. Rule Civ. Proc. 2 (“There is one form of action—the civil action.”); Rule 8(c) (listing among affirmative defenses both “laches” and “statute of limitations”). Cite as: 572 U. S. (4) 13 Opinion of the Court the statute of limitations is no defense [to an action] at law”); County of (“[A]pplication of the equitable defense of laches in an action at law would be novel indeed.”).15 Because we adhere to the position that, in face of a statute of limitations enacted by Congress, laches cannot be invoked to bar legal relief, the dissent thinks we “plac[e] insufficient weight upon the rules and practice of modern litigation.” Post, at 12. True, there has been, since 1938, only “one form of action—the civil action.” Fed. Rule Civ. Proc. 2. But “the substantive and remedial principles [applicable] prior to the advent of the federal rules [have] not changed.” 4 C. Wright & A. Miller, Fed- eral Practice and Procedure p. 177 Merck, and Oneida so illustrate. The dissent presents multiple citations, see post, at 1, 3–4, 7–8, 10–11, many of them far afield from the issue at hand, others obscuring what the cited decisions in fact ruled. Compare, e.g., post, at 1, 11, with infra, at 20–21 but failing to observe that Lanham Act contains no statute of limitations). The Patent Act states: “[N]o recovery shall be had for any infringe- ment committed more than six years prior to the filing of the com- plaint.” 35 U.S. C. The Act also provides that “[n]onin- fringement, absence of liability for infringement or unenforceability” may be raised “in any action involving the validity or infringement of a patent.” (2 ed.). Based in part on and com- mentary thereon, legislative history, and historical practice, the Fed- eral Circuit has held that laches can bar damages incurred prior to the commencement of suit, but not injunctive relief. A. C. Aukerman 1029–1031, 1039–1041 (1992) (en banc). We have not had occasion to review the Federal Circuit’s position. 14 PETRELLA v. METRO-GOLDWYN-MAYER, INC. Opinion of the Court v. Crosswinds Communities, Inc., (CA6 2007)); post, at 1, 10–11, with infra, at 15, n. 16 ); post, at 8, with infra, at 15, n. 16 (describing (4)). Yet tellingly, the dissent has come up with no case in which this Court has approved the application of laches to bar a claim for damages brought within the time allowed by a federal statute of limitations. There is nothing at all “differen[t],” see post, at 12, about copyright cases in this regard. IV We turn now to MGM’s principal arguments regarding the contemporary scope of the laches defense, all of them embraced by the dissent. A Laches is listed among affirmative defenses, along with, but discrete from, the statute of limitations, in Federal Rule of Civil Procedure 8(c). Accordingly, MGM main- tains, the plea is “available in every civil action” to bar all forms of relief. Tr. of Oral Arg. 43; see Brief for Re- spondents 40. To the Court’s question, could laches apply where there is an ordinary six-year statute of limitations, MGM’s counsel responded yes, case-specific circumstances might warrant a ruling that a suit brought in year five came too late. Tr. of Oral Arg. 52; see The expansive role for laches MGM envisions careens away from understandings, past and present, of the essen- tially gap-filling, not legislation-overriding, office of laches. Nothing in this Court’s precedent suggests a doctrine of such sweep. Quite the contrary, we have never applied laches to bar in their entirety claims for discrete wrongs occurring within a federally prescribed limitations pe- Cite as: 572 U. S. (4) 15 Opinion of the Court riod.16 Inviting individual judges to set a time limit other than the one Congress prescribed, we note, would tug against the uniformity Congress sought to achieve when it enacted See at 3–4. B MGM observes that equitable tolling “is read into every federal statute of limitation,” and asks why laches should not be treated similarly. See Brief for Respondents 23–26; post, –8. Tolling, which lengthens the time for commencing a civil action in appro- priate circumstances,17 applies when there is a statute of —————— 16 MGM pretends otherwise, but the cases on which it relies do not carry the load MGM would put on them. n. 7, is apparently MGM’s best case, for it is cited 13 times in MGM’s brief. See Brief for Respondents 8, 9, 14, 16, 18, 19, 25, 31, 34, 35, 36, 40, 47; post, at 1, 7, 10–11. however, does not so much as hint that laches may bar claims for discrete wrongs, all of them occurring within a federal limitations period. Part II–A of that opinion, dealing with the separate-accrual rule, held that “[e]ach discrete discriminatory act starts a new clock for filing charges alleging that act,” regardless of whether “past acts” are time Parts II–B and II–C of the opinion then distinguished separately accruing wrongs from hostile-work-environment claims, cumulative in effect and extending over long periods of time. at 115–117, 121. Laches could be in- voked, the Court reasoned, to limit the continuing violation doctrine’s potential to rescue untimely claims, not claims accruing separately within the limitations period. Bay Area Laundry, along with n. 7, is similarly featured by MGM. See also post, –8, 11. But that opinion considered laches only in the context of a federal statute calling for action “[a]s soon as practicable.” 29 U.S. C. see 522 U.S., at 205. (4), by MGM as a case resembling Petrella’s, see Tr. of Oral Arg. 32–33, 53, barred equitable claims that were timely under state law. When state law was the reference, federal courts sometimes applied laches as a further control. See at 3–4; (“Laches may bar equitable remedy before the local statute has run.”). No federal statute of limitations figured in Patterson. 17 E.g., a party’s infancy or mental disability, absence of the defend- 16 PETRELLA v. METRO-GOLDWYN-MAYER, INC. Opinion of the Court limitations; it is, in effect, a rule of interpretation tied to that limit. See 49– 50 ; Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 464 (1975).18 Laches, in contrast, originally served as a guide when no statute of limitations controlled the claim; it can scarcely be as a rule for inter- preting a statutory prescription. That is so here, because the statute, makes the starting trigger an infring- ing act committed three years back from the commence- ment of suit, while laches, as conceived by the Ninth Circuit and advanced by MGM, makes the presumptive trigger the defendant’s initial infringing act. See 695 F.3d, at 951; Brief for United States 16. C MGM insists that the defense of laches must be avail- able to prevent a copyright owner from sitting still, doing nothing, waiting to see what the outcome of an alleged infringer’s investment will be. See Brief for Respondents 48. In this case, MGM stresses, “[Petrella] conceded that she waited to file because ‘the film was deeply in debt and in the red and would probably never recoup.’ ” (quoting from App. 110). The Ninth Circuit similarly faulted Petrella for waiting to sue until the film Raging Bull “made money.” 695 F.3d, (internal quotation marks omitted). See also post, at 3–6 (deploring plaintiffs who wait to see whether the allegedly infringing work makes money). It is hardly incumbent on copyright owners, however, to challenge each and every actionable infringement. And —————— ant from the jurisdiction, fraudulent concealment. See S. Rep. No. 1014, 85th Cong., 1st Sess., 2–3 (1957) (hereinafter Senate Report). 18 The legislative history to which the dissent refers, post, speaks of “equitable situations on which the statute of limitations is generally suspended,” Senate Report 3, and says nothing about laches shrinking the time Congress allowed. Cite as: 572 U. S. (4) 17 Opinion of the Court there is nothing untoward about waiting to see whether an infringer’s exploitation undercuts the value of the copy- righted work, has no effect on the original work, or even complements it. Fan sites prompted by a book or film, for example, may benefit the copyright owner. See Wu, Tol- erated Use, 31 Colum. J. L. & Arts 617, 619–620 Even if an infringement is harmful, the harm may be too small to justify the cost of litigation. If the rule were, as MGM urges, “sue soon, or forever hold your peace,” copyright owners would have to mount a federal case fast to stop seemingly innocuous infringe- ments, lest those infringements eventually grow in magni- tude. Section 507(b)’s three-year limitations period, how- ever, coupled to the separate-accrual rule, see at 3–6, avoids such litigation profusion. It allows a copyright owner to defer suit until she can estimate whether litiga- tion is worth the candle. She will miss out on damages for periods prior to the three-year look-back, but her right to prospective injunctive relief should, in most cases, remain unaltered.19 D MGM points to the danger that evidence needed or useful to defend against liability will be lost during a copyright owner’s inaction. Brief for Respondents 37–38; see post, at 2–4.20 Recall, however, that Congress provided for reversionary renewal rights exercisable by an author’s heirs, rights that can be exercised, at the earliest for pre- —————— 19 The dissent worries that a plaintiff might sue for profits “every three years until the copyright expires.” Post, at 5; see post, at 2. That suggestion neglects to note that a plaintiff who proves infringe- ment will likely gain forward-looking injunctive relief stopping the defendant’s repetition of infringing acts. 20 As earlier noted, see the Court of Appeals did not reach the question whether evidentiary prejudice existed. 695 F.3d, 18 PETRELLA v. METRO-GOLDWYN-MAYER, INC. Opinion of the Court 1978 copyrights, 28 years after a work was written and copyrighted. See, at 2–3. At that time, the author, and perhaps other witnesses to the creation of the work, will be dead. See Congress must have been aware that the passage of time and the author’s death could cause a loss or dilution of evidence. Congress chose, nonetheless, to give the author’s family “a second chance to obtain fair remuneration.” Moreover, a copyright plaintiff bears the burden of proving infringement. See 3 W. Patry, Copyright p. 9–18 (3) (hereinafter Patry) (“As in other civil litiga- tion, a copyright owner bears the burden of establishing a prima facie case.”). But cf. post, at 4 (overlooking plain- tiff ’s burden to show infringement and the absence of any burden upon the defendant “to prove that it did not in- fringe”). Any hindrance caused by the unavailability of evidence, therefore, is at least as likely to affect plaintiffs as it is to disadvantage defendants. That is so in cases of the kind Petrella is pursuing, for a deceased author most probably would have supported his heir’s claim. The registration mechanism, we further note, reduces the need for extrinsic evidence. Although registration is “permissive,” both the certificate and the original work must be on file with the Copyright Office before a copy- right owner can sue for infringement. 411(a). Key evidence in the litigation, then, will be the certificate, the original work, and the allegedly infringing work. And the adjudication will often turn on the factfinder’s direct comparison of the original and the infringing works, i.e., on the factfinder’s “good eyes and common sense” in com- paring the two works’ “total concept and overall feel.” Peter F. Gaito Architecture, (CA2 0) (internal quotation marks omitted). Cite as: 572 U. S. (4) 19 Opinion of the Court E Finally, when a copyright owner engages in intention- ally misleading representations concerning his abstention from suit, and the alleged infringer detrimentally relies on the copyright owner’s deception, the doctrine of estoppel may bar the copyright owner’s claims completely, elimi- nating all potential remedies. See 6 Patry at 20– 110 to 20–112.21 The test for estoppel is more exacting than the test for laches, and the two defenses are differ- ently oriented. The gravamen of estoppel, a defense long recognized as available in actions at law, see Wehrman v. Conklin, is misleading and consequent loss, see 6 Patry at 20–110 to 20–112. Delay may be involved, but is not an element of the de- fense. For laches, timeliness is the essential element. In contrast to laches, urged by MGM entirely to override the statute of limitations Congress prescribed, estoppel does not undermine Congress’ prescription, for it rests on mis- leading, whether engaged in early on, or later in time. Stating that the Ninth Circuit “ha[d] taken a wrong turn in its formulation and application of laches in copy- right cases,” Judge Fletcher called for fresh consideration of the “A recognition of the dis- tinction between estoppel and laches,” he suggested, “would be a good place to start.” We agree. V The courts below summarily disposed of Petrella’s case based on laches, preventing adjudication of any of her claims on the merits and foreclosing the possibility of any form of relief. That disposition, we have explained, was erroneous. Congress’ time provisions secured to authors a —————— 21 Although MGM, in its answer to Petrella’s complaint, separately raised both laches and estoppel as affirmative defenses, see Defendants’ Answer to Plaintiff’s Complaint in No. CV 09–0072 (CD Cal.), the courts below did not address the estoppel plea. 20 PETRELLA v. METRO-GOLDWYN-MAYER, INC. Opinion of the Court copyright term of long duration, and a right to sue for infringement occurring no more than three years back from the time of suit. That regime leaves “little place” for a doctrine that would further limit the timeliness of a copyright owner’s suit. See 1 Dobbs at 152. In extraordinary circumstances, however, the consequences of a delay in commencing suit may be of sufficient magni- tude to warrant, at the very outset of the litigation, cur- tailment of the relief equitably awardable. (CA6 2007), is illustrative. In that case, the defendants were alleged to have used without permission, in planning and building a housing development, the plaintiffs’ copy- righted architectural design. Long aware of the defend- ants’ project, the plaintiffs took no steps to halt the hous- ing development until more than 168 units were built, 109 of which were occupied. Although the action was filed within three-year statute of limitations, the District Court granted summary judgment to the defendants, dismissing the entire case on grounds of laches. The trial court’s rejection of the entire suit could not stand, the Court of Appeals explained, for it was not within the Judiciary’s ken to debate the wisdom of three-year look-back prescription. Neverthe- less, the Court of Appeals affirmed the District Court’s judgment to this extent: The plaintiffs, even if they might succeed in proving infringement of their copyrighted de- sign, would not be entitled to an order mandating destruc- tion of the housing project. That relief would be inequit- able, the Sixth Circuit held, for two reasons: the plaintiffs knew of the defendants’ construction plans before the de- fendants broke ground, yet failed to take readily available measures to stop the project; and the requested relief would “work an unjust hardship” upon the defendants and innocent third parties. See also New Publications 584– Cite as: 572 U. S. (4) 21 Opinion of the Court 585 (CA2 1989) (despite awareness since 1986 that book containing allegedly infringing material would be pub- lished in the United States, copyright owner did not seek a restraining order until 1988, after the book had been printed, packed, and shipped; as injunctive relief “would [have] result[ed] in the total destruction of the work,” the court “relegat[ed plaintiff] to its damages remedy”). In sum, the courts below erred in treating laches as a complete bar to Petrella’s copyright infringement suit. The action was commenced within the bounds of the Act’s time-to-sue prescription, and does not present extraordinary circumstances of the kind involved in Chirco and New Petrella notified MGM of her copyright claims before MGM invested millions of dollars in creating a new edition of Raging Bull. And the equitable relief Petrella seeks—e.g., disgorgement of unjust gains and an injunction against future infringement—would not result in “total destruction” of the film, or anything close to it. See New MGM released Raging Bull more than three decades ago and has marketed it continuously since then. Allowing Petrella’s suit to go forward will put at risk only a fraction of the income MGM has earned during that period and will work no unjust hardship on innocent third parties, such as consumers who have purchased copies of Raging Bull. Cf. Chirco, 474 F.3d, –236 (destruction remedy would have ousted families from recently purchased homes). The circum- stances here may or may not (we need not decide) warrant limiting relief at the remedial stage, but they are not sufficiently extraordinary to justify threshold dismissal. Should Petrella ultimately prevail on the merits, the District Court, in determining appropriate injunctive relief and assessing profits, may take account of her delay in commencing suit. See at 1–2, 11–12. In doing so, however, that court should closely examine MGM’s alleged 22 PETRELLA v. METRO-GOLDWYN-MAYER, INC. Opinion of the Court reliance on Petrella’s delay.22 This examination should take account of MGM’s early knowledge of Petrella’s claims, the protection MGM might have achieved through pursuit of a declaratory judgment action, the extent to which MGM’s investment was protected by the separate- accrual rule, the court’s authority to order injunctive relief “on such terms as it may deem reasonable,” and any other considerations that would justify adjusting injunctive relief or profits. See Haas v. Leo Feist, Inc., 234 F. 105, 107–108 (SDNY 1916) (adjudicating copyright infringement suit on the merits and decreeing injunctive relief, but observing that, in awarding profits, account may be taken of copyright owner’s inaction until infringer had spent large sums exploiting the work at issue). See also Tr. of Oral Arg. 23 (Government observation that, in fashioning equitable remedies, court has considerable leeway; it could, for example, allow MGM to continue using Raging Bull as a derivative work upon payment of a reasonable royalty to Petrella). Whatever adjustments may be in order in awarding injunctive relief, and in ac- counting for MGM’s gains and profits, on the facts thus far presented, there is no evident basis for immunizing MGM’s present and future uses of the copyrighted work, free from any obligation to pay royalties. * * * For the reasons stated, the judgment of the United States Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings con- sistent with this opinion. It is so ordered. —————— 22 While reliance or its absence may figure importantly in this case, we do not suggest that reliance is in all cases a sine qua non for ad- justment of injunctive relief or profits. Cite as: 572 U. S. (4) 1 BREYER, J., dissenting SUPREME COURT OF THE UNITED STATES No. 12–1315 PAULA PETRELLA, PETITIONER v. METRO- GOLDWYN-MAYER, INC., ET AL.

Justice Breyer

dissenting

Petrella v. Metro-Goldwyn-Mayer, Inc.

2014-05-19

https://www.courtlistener.com/opinion/2675754/petrella-v-metro-goldwyn-mayer-inc/

https://www.courtlistener.com/api/rest/v3/clusters/2675754/

2013-045

Legal systems contain doctrines that help courts avoid the unfairness that might arise were legal rules to apply strictly to every case no matter how unusual the circum- stances. “[T]he nature of the equitable,” Aristotle long ago observed, is “a correction of law where it is defective owing to its universality.” Nicomachean Ethics 99 (D. Ross transl. L. Brown ed. 2009). Laches is one such equitable doctrine. It applies in those extraordinary cases where the plaintiff “unreasonably delays in filing a suit,” National Railroad Passenger Corporation v. Morgan, 536 U.S. 101, 121 (2002), and, as a result, causes “unjust hardship” to the defendant, Chirco v. Crosswinds Communities, Inc., 474 F.3d 227, 236 (CA6 2007) (emphasis deleted). Its purpose is to avoid “inequity.” Galliher v. Cadwell, 145 U.S. 368, 373 (1892). And, as Learned Hand pointed out, it may well be “inequitable for the owner of a copyright, with full no- tice of an intended infringement, to stand inactive while the proposed infringer spends large sums of money in its exploitation, and to intervene only when his speculation has proved a success.” Haas v. Leo Feist, Inc., 234 F. 105, 108 (SDNY 1916). 2 PETRELLA v. METRO-GOLDWYN-MAYER, INC. BREYER, J., dissenting Today’s decision disables federal courts from addressing that inequity. I respectfully dissent. I Circumstances warranting the application of laches in the context of copyright claims are not difficult to imagine. The 3-year limitations period under the Copyright Act may seem brief, but it is not. 17 U.S. C. §507(b). That is because it is a rolling limitations period, which restarts upon each “separate accrual” of a claim. See ante, at 5; 6 W. Patry, Copyright §20:23, pp. 20–44 to 20–46 (2013). If a defendant reproduces or sells an infringing work on a continuing basis, a plaintiff can sue every 3 years until the copyright term expires—which may be up to 70 years after the author’s death. §302(a) (works created after January 1, 1978, are protected until 70 years after the author’s death); §304(a) (works created before January 1, 1978, are protected for 28 years plus a 67-year renewal period). If, for example, a work earns no money for 20 years, but then, after development expenses have been incurred, it earns profits for the next 30, a plaintiff can sue in year 21 and at regular 3-year intervals thereafter. Each time the plain- tiff will collect the defendant’s profits earned during the prior three years, unless he settles for a lump sum along the way. The defendant will recoup no more than his outlays and any “elements of profit attributable to factors other than the copyrighted work.” §§504(a)(1), (b). A 20-year delay in bringing suit could easily prove inequitable. Suppose, for example, the plaintiff has delib- erately waited for the death of witnesses who might prove the existence of understandings about a license to repro- duce the copyrighted work, or who might show that the plaintiff ’s work was in fact derived from older copyrighted materials that the defendant has licensed. Or, suppose the plaintiff has delayed in bringing suit because he wants to avoid bargaining with the defendant up front over a Cite as: 572 U. S. ____ (2014) 3 BREYER, J., dissenting license. He knows that if he delays legal action, and the defendant invests time, effort, and resources into making the derivative product, the plaintiff will be in a much stronger position to obtain favorable licensing terms through settlement. Or, suppose the plaintiff has waited until he becomes certain that the defendant’s production bet paid off, that the derivative work did and would con- tinue to earn money, and that the plaintiff has a chance of obtaining, say, an 80% share of what is now a 90% pure profit stream. (N. B. The plaintiff ’s profits recovery will be reduced by any “deductible expenses” incurred by the defendant in producing the work, and by any “elements of profits attributable to factors other than the copyrighted work,” §504(b)). Or, suppose that all of these circumstances exist together. Cases that present these kinds of delays are not imagi- nary. One can easily find examples from the lower courts where plaintiffs have brought claims years after they accrued and where delay-related inequity resulted. See, e.g., Ory v. McDonald, 141 Fed. Appx. 581, 583 (CA9 2005), aff ’g 2003 WL 22909286, *1 (CD Cal., Aug. 5, 2003) (claim that a 1960’s song infringed the “hook or riff ” from the 1926 song “Muskrat Ramble,” brought more than 30 years after the song was released); Danjaq LLC v. Sony Corp., 263 F.3d 942, 952–956 (CA9 2001) (claim that seven James Bond films infringed a copyright to a screen- play, brought 19 to 36 years after the films were released, and where “many of the key figures in the creation of the James Bond movies ha[d] died” and “many of the relevant records [went] missing”); Jackson v. Axton, 25 F.3d 884, 889 (CA9 1994), overruled on other grounds, 510 U.S. 517 (claim of coauthorship of the song “Joy to the World,” brought 17 years after the plaintiff learned of his claim such that memories faded, the original paper containing the lyrics was lost, the recording studio (with its records) closed, and the defendant had “arranged his business 4 PETRELLA v. METRO-GOLDWYN-MAYER, INC. BREYER, J., dissenting affairs around the Song” for years); Newsome v. Brown, 2005 WL 627639, *8–*9 (SDNY, Mar. 16, 2005) (claim regarding the song “It’s a Man’s World,” brought 40 years after first accrual, where the plaintiff ’s memory had faded and a key piece of evidence was destroyed by fire). See also Chirco, 474 F.3d, at 230–231, 234–236 (claim that condominium design infringed plaintiff ’s design, brought only 2.5 years (or so) after claim accrued but after condo- minium was built, apartments were sold, and 109 families had moved in). Consider, too, the present case. The petitioner claims the MGM film Raging Bull violated a copyright originally owned by her father, which she inherited and then re- newed in 1991. She waited 18 years after renewing the copyright, until 2009, to bring suit. During those 18 years, MGM spent millions of dollars developing different edi- tions of, and marketing, the film. See App. to Pet. for Cert. 13a. MGM also entered into numerous licensing agreements, some of which allowed television networks to broadcast the film through 2015. Id., at 14a. Meanwhile, three key witness died or became unavailable, making it more difficult for MGM to prove that it did not infringe the petitioner’s copyright (either because the 1963 screenplay was in fact derived from a different book, the rights to which MGM owned under a nonchallenged license, or because MGM held a license to the screenplay under a 1976 agreement that it signed with Jake LaMotta, who coauthored the screenplay with the petitioner’s father, see id. at 3a, 5a; App. 128–129, 257–258, 266–267). Conse- quently, I believe the Court of Appeals acted lawfully in dismissing the suit due to laches. Long delays do not automatically prove inequity, but, depending upon the circumstances, they raise that possi- bility. Indeed, suppose that that the copyright-holders in the song cases cited above, or their heirs, facing sudden revivals in demand or eventual deaths of witnesses, had Cite as: 572 U. S. ____ (2014) 5 BREYER, J., dissenting brought their claims 50, or even 60 years after those claims first accrued. Or suppose that the loss of evidence was clearly critical to the defendants’ abilities to prove their cases. The Court holds that insofar as a copyright claim seeks damages, a court cannot ever apply laches, irrespective of the length of the plaintiff ’s delay, the amount of the harm that it caused, or the inequity of permitting the action to go forward. II Why should laches not be available in an appropriate case? Consider the reasons the majority offers. First, the majority says that the 3-year “copyright statute of limita- tions . . . itself takes account of delay,” and so additional safeguards like laches are not needed. Ante, at 11. I agree that sometimes that is so. But I also fear that sometimes it is not. The majority correctly points out that the limita- tions period limits the retrospective relief a plaintiff can recover. It imposes a cap equal to the profits earned dur- ing the prior three years, in addition to any actual damages sustained during this time. Ibid.; §504(b). Thus, if the plaintiff waits from, say, 1980 until 2001 to bring suit, she cannot recover profits for the 1980 to 1998 period. But she can recover the defendant’s profits from 1998 through 2001, which might be precisely when net revenues turned positive. And she can sue every three years thereafter until the copyright expires, perhaps in the year 2060. If the plaintiff ’s suit involves the type of inequitable circum- stances I have described, her ability to recover profits from 1998 to 2001 and until the copyright expires could be just the kind of unfairness that laches is designed to prevent. Second, the majority points out that the plaintiff can recover only the defendant’s profits less “ ‘deductible ex- penses’ incurred in generating those profits.” Ante, at 12 (quoting §504(b)). In other words, the majority takes assurance from the fact that the Act enables the defendant 6 PETRELLA v. METRO-GOLDWYN-MAYER, INC. BREYER, J., dissenting to recoup his outlays in developing or selling the allegedly infringing work. Again, sometimes that fact will prevent inequitable results. But sometimes it will not. A plain- tiff ’s delay may mean that the defendant has already recovered the majority of his expenses, and what is left is primarily profit. It may mean that the defendant has dedicated decades of his life to producing the work, such that the loss of a future profit stream (even if he can re- cover past expenses) is tantamount to the loss of any income in later years. And in circumstances such as those described, it could prove inequitable to give the profit to a plaintiff who has unnecessarily delayed in filing an action. Simply put, the “deductible expenses” provision does not protect the defendant from the potential inequity high- lighted by Judge Hand nearly 100 years ago in his influ- ential copyright opinion. That is, it does not stop a copyright-holder (or his heirs) from “stand[ing] inactive while the proposed infringer spends large sums of money” in a risky venture; appearing on the scene only when the venture has proved a success; and thereby collecting sub- stantially more money than he could have obtained at the outset, had he bargained with the investor over a license and royalty fee. Haas, 234 F., at 108. But cf. id., at 108– 109 (plaintiff to receive injunctive relief since one of the defendants was a “deliberate pirate,” but profit award to be potentially reduced in light of laches). Third, the majority says that “[i]nviting individual judges to set a time limit other than the one Congress prescribed” in the Copyright Act would “tug against the uniformity Congress sought to achieve when it enacted §507(b).” Ante, at 15. But why does the majority believe that part of what Congress intended to “achieve” was the elimination of the equitable defense of laches? As the majority recognizes, Congress enacted a uniform statute of limitations for copyright claims in 1957 so that federal courts, in determining timeliness, no longer had to borrow Cite as: 572 U. S. ____ (2014) 7 BREYER, J., dissenting from state law which varied from place to place. See ante, at 3–4. Nothing in the 1957 Act—or anywhere else in the text of the copyright statute—indicates that Congress also sought to bar the operation of laches. The Copyright Act is silent on the subject. And silence is consistent, not inconsistent, with the application of equitable doctrines. For one thing, the legislative history for §507 shows that Congress chose not to “specifically enumerat[e] certain equitable considerations which might be advanced in connection with civil copyright actions” because it under- stood that “ ‘[f]ederal district courts, generally, recognize these equitable defenses anyway.’ ” S. Rep. No. 1014, 85th Cong., 1st Sess., 2–3 (1957) (quoting the House Judiciary Committee). Courts prior to 1957 had often applied laches in federal copyright cases. See, e.g., Callaghan v. Myers, 128 U.S. 617, 658–659 (1888) (assuming laches was an available defense in a copyright suit); Edwin L. Wiegand Co. v. Harold E. Trent Co., 122 F.2d 920, 925 (CA3 1941) (applying laches to bar a copyright suit); D. O. Haynes & Co. v. Druggists’ Circular, 32 F.2d 215, 216–218 (CA2 1929) (same). Congress expected they would continue to do so. Furthermore, this Court has held that federal courts may “appl[y] equitable doctrines that may toll or limit the time period” for suit when applying a statute of limita- tions, because a statutory “filing period” is a “requirement” subject to adjustment “ ‘when equity so requires.’ ” Mor- gan, 536 U.S., at 121–122 (quoting Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 398 (1982); emphasis added). This Court has read laches into statutes of limitations otherwise silent on the topic of equitable doctrines in a multitude of contexts, as have lower courts. See, e.g., Morgan, supra, at 121 (“an employer may raise a laches defense” under Title VII); Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 205 (1997) (similar, in respect to suits under the 8 PETRELLA v. METRO-GOLDWYN-MAYER, INC. BREYER, J., dissenting Multiemployer Pension Plan Amendments Act of 1980 (MPPAA)); Abbott Laboratories v. Gardner, 387 U.S. 136, 155 (1967) (similar, in respect to an action for declaratory and injunctive relief under the Administrative Procedure Act); Patterson v. Hewitt, 195 U.S. 309, 319–320 (1904) (similar, in the case of a property action brought within New Mexico’s statute of limitations); Alsop v. Riker, 155 U.S. 448, 460 (1894) (holding that “independently of the statute of limitations,” the contract action was barred “because of laches”); Teamsters & Employers Welfare Trust of Ill. v. Gorman Bros. Ready Mix, 283 F.3d 877, 883 (CA7 2002) (laches available “in a suit against an [Employee Retirement Income Security Act of 1974] (ERISA)] plan for benefits”); Hot Wax, Inc. v. Turtle Wax, Inc., 191 F.3d 813, 822–823 (CA7 1999) (laches available in a Lanham Act suit filed within the limitations period). Unless Congress indicates otherwise, courts normally assume that equita- ble rules continue to operate alongside limitations periods, and that equity applies both to plaintiffs and to defend- ants. See Astoria Fed. Sav. & Loan Assn. v. Solimino, 501 U.S. 104, 108 (1991) (“Congress is understood to legislate against a background of common-law adjudicatory princi- ples” and to incorporate them “except when a statutory purpose to the contrary is evident” (internal quotation marks and citation omitted)); Porter v. Warner Holding Co., 328 U.S. 395, 398 (1946) (“Unless otherwise provided by statute, all the inherent equitable powers of the Dis- trict Court are available for the proper and complete exercise of that jurisdiction”). The Court today comes to a different conclusion. It reads §507(b)’s silence as preserving doctrines that lengthen the period for suit when equitable considerations favor the plaintiff (e.g., equitable tolling), but as foreclos- ing a doctrine that would shorten the period when equity favors the defendant (i.e., laches). See ante, at 15–16, 19– 20. I do not understand the logic of reading a silent stat- Cite as: 572 U. S. ____ (2014) 9 BREYER, J., dissenting ute in this manner. Fourth, the majority defends its rule by observing that laches was “developed by courts of equity,” and that this Court has “cautioned against invoking laches to bar legal relief ” even following the merger of law and equity in 1938. Ante, at 12–13. The majority refers to three cases that offer support for this proposition, but none is deter- minative. In the first, Holmberg v. Armbrecht, 327 U.S. 392 (1946), the Court said: “If Congress explicitly puts a limit upon the time for enforcing a right which it created, there is an end of the matter. . . . . . “Traditionally and for good reasons, statutes of limita- tion are not controlling measures of equitable relief.” Id., at 395–396. This statement, however, constituted part of the Court’s explanation as to why a federal statute, silent about limi- tations, should be applied consistently with “historic prin- ciples of equity in the enforcement of federally-created equitable rights” rather than with New York’s statute of limitations. Id., at 395. The case had nothing to do with whether laches governs in actions at law. The lawsuit in Holmberg had been brought “in equity,” and the Court remanded for a determination of whether the petitioners were “chargeable with laches.” Id., at 393, 397. The second case the majority cites, Merck & Co. v. Reyn- olds, 559 U.S. 633 (2010), provides some additional sup- port, but not much. There, the Court cited a 1935 case for the proposition that “ ‘[l]aches within the term of the stat- ute of limitations is no defense at law.’ ” Id., at 652 (quot- ing United States v. Mack, 295 U.S. 480, 489 (1935)). But Merck concerned a federal securities statute that con- tained both a 2-year statute of limitations, running from the time of “discovery,” and a 5-year statute of repose, 10 PETRELLA v. METRO-GOLDWYN-MAYER, INC. BREYER, J., dissenting running from the time of a “violation.” Id., at 638 (citing 28 U.S. C. §1658(b)). Given that repose statutes set “an outside limit” on suit and are generally “inconsistent with tolling” and similar equitable doctrines, the Court held that the 2-year limitations period at issue was not subject to an “inquiry notice” rule or, by analogy, to laches. Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 363 (1991) (internal quotation marks and citation omitted); Merck, supra, at 650–652. Merck did not suggest that statutes of limitations are always or normally incon- sistent with equitable doctrines when plaintiffs seek dam- ages. It simply found additional support for its conclusion in a case that this Court decided before the merger of law and equity. And here, unlike in Merck, the statute of limitations is not accompanied by a corollary statute of repose. Third, in County of Oneida v. Oneida Indian Nation of N. Y., 470 U.S. 226 (1985), the Court said in a footnote that “application of the equitable defense of laches in an action at law would be novel indeed.” Id., at 245, n. 16. This statement was made in light of special policies re- lated to Indian tribes, which the Court went on to discuss in the following sentences. Ibid. In any event, Oneida did not resolve whether laches was available to the defend- ants, for the lower court had not ruled on the issue. Id., at 244–245. In sum, there is no reason to believe that the Court meant any of its statements in Holmberg, Merck, or Oneida to announce a general rule about the availability of laches in actions for legal relief, whenever Congress pro- vides a statute of limitations. To the contrary, the Court has said more than once that a defendant could invoke laches in an action for damages (even though no assertion of the defense had actually been made in the case), despite a fixed statute of limitations. See Morgan, 536 U.S., at 116–119, 121–122 (laches available in hostile work envi- Cite as: 572 U. S. ____ (2014) 11 BREYER, J., dissenting ronment claims seeking damages under Title VII); Bay Area Laundry, 522 U.S., at 205 (laches available in ac- tions for “withdrawal liability assessment[s]” under the MPPAA). Lower courts have come to similar holdings in a wide array of circumstances—often approving not only of the availability of the laches defense, but of its application to the case at hand. E.g., Cayuga Indian Nation of N. Y. v. Pataki, 413 F.3d 266, 274–277 (CA2 2005) (laches avail- able in a “possessory land claim” in which the District Court awarded damages, whether “characterized as an action at law or in equity,” and dismissing the action due to laches); Teamsters, 283 F.3d, at 881–883 (laches avail- able in suits under ERISA for benefits, but not warranted in that case); Hot Wax, 191 F.3d, at 822–827 (“[T]he ap- plication of the doctrine of laches to Hot Wax’s Lanham Act claims [requesting damages] by the district court was proper”); A. C. Aukerman Co. v. R. L. Chaides Constr. Co., 960 F.2d 1020, 1030–1032, 1045–1046 (CAFed 1992) (en banc) (laches available in patent suit claiming damages, and remanding for whether the defense was successful); Cornetta v. United States, 851 F.2d 1372, 1376–1383 (CAFed 1988) (en banc) (same, in suit seeking backpay). Even if we focus only upon federal copyright litigation, four of the six Circuits to have considered the matter have held that laches can bar claims for legal relief. See 695 F.3d 946, 956 (CA9 2012) (case below, barring all copy- right claims due to laches); Peter Letterese & Assocs., Inc. v. World Inst. of Scientology Enterprises, Int’l, 533 F.3d 1287, 1319–1322 (CA11 2008) (laches can bar copyright claims for retrospective damages); Chirco, 474 F.3d, at 234–236 (“laches can be argued ‘regardless of whether the suit is at law or in equity,’ ” and holding that while the plaintiffs could obtain damages and an injunction, their request for additional equitable relief “smack[ed] of the inequity against which Judge Hand cautioned in Haas and which the judicial system should abhor” (quoting Team- 12 PETRELLA v. METRO-GOLDWYN-MAYER, INC. BREYER, J., dissenting sters, supra, at 881)); Jacobsen v. Deseret Book Co., 287 F. 3d 936, 950–951 (CA10 2002) (laches available in “ ‘rare cases,’ ” and failing to draw a distinction in the type of remedy sought (citation omitted). But see New Era Publi- cations Int’l v. Henry Holt & Co., 873 F.2d 576, 584–585 (CA2 1989) (laches can bar claims for injunctive relief, but not damages, under the Copyright Act); Lyons Partner- ship, L. P. v. Morris Costumes, Inc., 243 F.3d 789, 798– 799 (CA4 2001) (laches unavailable in copyright cases altogether). Perhaps more importantly, in permitting laches to apply to copyright claims seeking equitable relief but not to those seeking legal relief, the majority places insufficient weight upon the rules and practice of modern litigation. Since 1938, Congress and the Federal Rules have replaced what would once have been actions “at law” and actions “in equity” with the “civil action.” Fed. Rule Civ. Proc. 2 (“There is one form of action—the civil action”). A federal civil action is subject to both equitable and legal defenses. Fed. Rule Civ. Proc. 8(c)(1) (“In responding to a pleading, a party must affirmatively state any avoidance or affirma- tive defense, including: . . . estoppel . . . laches . . . [and] statute of limitations”). Accordingly, since 1938, federal courts have frequently allowed defendants to assert what were formerly equitable defenses—including laches—in what were formerly legal actions. See supra, at 10–11 (citing cases). Why should copyright be treated differ- ently? Indeed, the majority concedes that “restitutional remedies” like “profits” (which are often claimed in copy- right cases) defy clear classification as “equitable” or “legal.” Ante, at 2, n. 1 (internal quotation marks omit- ted). Why should lower courts have to make these uneasy and unnatural distinctions? Fifth, the majority believes it can prevent the inequities that laches seeks to avoid through the use of a different doctrine, namely equitable estoppel. Ante, at 19. I doubt Cite as: 572 U. S. ____ (2014) 13 BREYER, J., dissenting that is so. As the majority recognizes, “the two defenses are differently oriented.” Ibid. The “gravamen” of estop- pel is a misleading representation by the plaintiff that the defendant relies on to his detriment. 6 Patry, Copyright §20:58, at 20–110 to 20–112. The gravamen of laches is the plaintiff ’s unreasonable delay, and the consequent prejudice to the defendant. Id., §20:54, at 20–96. Where due to the passage of time, evidence favorable to the de- fense has disappeared or the defendant has continued to invest in a derivative work, what misleading representa- tion by the plaintiff is there to estop? In sum, as the majority says, the doctrine of laches may occupy only a “ ‘little place’ ” in a regime based upon stat- utes of limitations. Ante, at 20 (quoting 1 D. Dobbs, Law of Remedies §2.6(1), p. 152 (2d ed. 1993)). But that place is an important one. In those few and unusual cases where a plaintiff unreasonably delays in bringing suit and consequently causes inequitable harm to the defendant, the doctrine permits a court to bring about a fair result. I see no reason to erase the doctrine from copyright’s lexi- con, not even in respect to limitations periods applicable to damages actions. Consequently, with respect, I dissent

Legal systems contain doctrines that help courts avoid the unfairness that might arise were legal rules to apply strictly to every case no matter how unusual the circum- stances. “[T]he nature of the equitable,” Aristotle long ago observed, is “a correction of law where it is defective owing to its universality.” Nicomachean Ethics 99 (D. Ross transl. L. Brown ed. 2009). Laches is one such equitable doctrine. It applies in those extraordinary cases where the plaintiff “unreasonably delays in filing a suit,” National Railroad Passenger 121 (2002), and, as a result, causes “unjust hardship” to the defendant, Its purpose is to avoid “inequity.” Galliher v. Cadwell, 145 U.S. 368, 373 (1892). And, as Learned Hand pointed out, it may well be “inequitable for the owner of a copyright, with full no- tice of an intended infringement, to stand inactive while the proposed infringer spends large sums of money in its exploitation, and to intervene only when his speculation has proved a success.” 2 PETRELLA v. METRO-GOLDWYN-MAYER, INC. BREYER, J., dissenting Today’s decision disables federal courts from addressing that inequity. I respectfully dissent. I Circumstances warranting the application of laches in the context of copyright claims are not difficult to imagine. The 3-year limitations period under the Copyright Act may seem brief, but it is not. 17 U.S. C. That is because it is a rolling limitations period, which restarts upon each “separate accrual” of a claim. See ante, at 5; 6 W. Patry, Copyright pp. 20–44 to 20–46 (2013). If a defendant reproduces or sells an infringing work on a continuing basis, a plaintiff can sue every 3 years until the copyright term expires—which may be up to 70 years after the author’s death. (works created after January 1, 1978, are protected until 70 years after the author’s death); (works created before January 1, 1978, are protected for 28 years plus a 67-year renewal period). If, for example, a work earns no money for 20 years, but then, after development expenses have been incurred, it earns profits for the next 30, a plaintiff can sue in year 21 and at regular 3-year intervals thereafter. Each time the plain- tiff will collect the defendant’s profits earned during the prior three years, unless he settles for a lump sum along the way. The defendant will recoup no more than his outlays and any “elements of profit attributable to factors other than the copyrighted work.” (b). A 20-year delay in bringing suit could easily prove inequitable. Suppose, for example, the plaintiff has delib- erately waited for the death of witnesses who might prove the existence of understandings about a license to repro- duce the copyrighted work, or who might show that the plaintiff ’s work was in fact derived from older copyrighted materials that the defendant has licensed. Or, suppose the plaintiff has delayed in bringing suit because he wants to avoid bargaining with the defendant up front over a Cite as: 572 U. S. (2014) 3 BREYER, J., dissenting license. He knows that if he delays legal action, and the defendant invests time, effort, and resources into making the derivative product, the plaintiff will be in a much stronger position to obtain favorable licensing terms through settlement. Or, suppose the plaintiff has waited until he becomes certain that the defendant’s production bet paid off, that the derivative work did and would con- tinue to earn money, and that the plaintiff has a chance of obtaining, say, an 80% share of what is now a 90% pure profit stream. aff ’g (claim that a 1960’s song infringed the “hook or riff ” from the 1926 song “Muskrat Ramble,” brought more than 30 years after the song was released); Danjaq (claim that seven James Bond films infringed a copyright to a screen- play, brought 19 to 36 years after the films were released, and where “many of the key figures in the creation of the James Bond movies ha[d] died” and “many of the relevant records [went] missing”); 889 (CA9 1994), overruled on other grounds, (claim of coauthorship of the song “Joy to the World,” brought 17 years after the plaintiff learned of his claim such that memories faded, the original paper containing the lyrics was lost, the recording studio (with its records) closed, and the defendant had “arranged his business 4 PETRELLA v. METRO-GOLDWYN-MAYER, INC. BREYER, J., dissenting affairs around the Song” for years); (claim regarding the song “It’s a Man’s World,” brought 40 years after first accrual, where the plaintiff ’s memory had faded and a key piece of evidence was destroyed by fire). See also –231, 234– (claim that condominium design infringed plaintiff ’s design, brought only 2.5 years (or so) after claim accrued but after condo- minium was built, apartments were sold, and 109 families had moved in). Consider, too, the present case. The petitioner claims the MGM film Raging Bull violated a copyright originally owned by her father, which she inherited and then re- newed in 1991. She waited 18 years after renewing the copyright, until 2009, to bring suit. During those 18 years, MGM spent millions of dollars developing different edi- tions of, and marketing, the film. See App. to Pet. for Cert. 13a. MGM also entered into numerous licensing agreements, some of which allowed television networks to broadcast the film through 2015. at 14a. Meanwhile, three key witness died or became unavailable, making it more difficult for MGM to prove that it did not infringe the petitioner’s copyright (either because the 1963 screenplay was in fact derived from a different book, the rights to which MGM owned under a nonchallenged license, or because MGM held a license to the screenplay under a 1976 agreement that it signed with Jake LaMotta, who coauthored the screenplay with the petitioner’s father, see at 3a, 5a; App. 128–129, 257–258, 266–267). Conse- quently, I believe the Court of Appeals acted lawfully in dismissing the suit due to laches. Long delays do not automatically prove inequity, but, depending upon the circumstances, they raise that possi- bility. Indeed, suppose that that the copyright-holders in the song cases cited above, or their heirs, facing sudden revivals in demand or eventual deaths of witnesses, had Cite as: 572 U. S. (2014) 5 BREYER, J., dissenting brought their claims 50, or even 60 years after those claims first accrued. Or suppose that the loss of evidence was clearly critical to the defendants’ abilities to prove their cases. The Court holds that insofar as a copyright claim seeks damages, a court cannot ever apply laches, irrespective of the length of the plaintiff ’s delay, the amount of the harm that it caused, or the inequity of permitting the action to go forward. II Why should laches not be available in an appropriate case? Consider the reasons the majority offers. First, the majority says that the 3-year “copyright statute of limita- tions itself takes account of delay,” and so additional safeguards like laches are not needed. Ante, at 11. I agree that sometimes that is so. But I also fear that sometimes it is not. The majority correctly points out that the limita- tions period limits the retrospective relief a plaintiff can recover. It imposes a cap equal to the profits earned dur- ing the prior three years, in addition to any actual damages sustained during this time. Ib; Thus, if the plaintiff waits from, say, 1980 until to bring suit, she cannot recover profits for the 1980 to 1998 period. But she can recover the defendant’s profits from 1998 through which might be precisely when net revenues turned positive. And she can sue every three years thereafter until the copyright expires, perhaps in the year 2060. If the plaintiff ’s suit involves the type of inequitable circum- stances I have described, her ability to recover profits from 1998 to and until the copyright expires could be just the kind of unfairness that laches is designed to prevent. Second, the majority points out that the plaintiff can recover only the defendant’s profits less “ ‘deductible ex- penses’ incurred in generating those profits.” Ante, at 12 (quoting In other words, the majority takes assurance from the fact that the Act enables the defendant 6 PETRELLA v. METRO-GOLDWYN-MAYER, INC. BREYER, J., dissenting to recoup his outlays in developing or selling the allegedly infringing work. Again, sometimes that fact will prevent inequitable results. But sometimes it will not. A plain- tiff ’s delay may mean that the defendant has already recovered the majority of his expenses, and what is left is primarily profit. It may mean that the defendant has dedicated decades of his life to producing the work, such that the loss of a future profit stream (even if he can re- cover past expenses) is tantamount to the loss of any income in later years. And in circumstances such as those described, it could prove inequitable to give the profit to a plaintiff who has unnecessarily delayed in filing an action. Simply put, the “deductible expenses” provision does not protect the defendant from the potential inequity high- lighted by Judge Hand nearly 100 years ago in his influ- ential copyright opinion. That is, it does not stop a copyright-holder (or his heirs) from “stand[ing] inactive while the proposed infringer spends large sums of money” in a risky venture; appearing on the scene only when the venture has proved a success; and thereby collecting sub- stantially more money than he could have obtained at the outset, had he bargained with the investor over a license and royalty fee. 234 F., at But cf. at – 109 (plaintiff to receive injunctive relief since one of the defendants was a “deliberate pirate,” but profit award to be potentially reduced in light of laches). Third, the majority says that “[i]nviting individual judges to set a time limit other than the one Congress prescribed” in the Copyright Act would “tug against the uniformity Congress sought to achieve when it enacted ” Ante, at 15. But why does the majority believe that part of what Congress intended to “achieve” was the elimination of the equitable defense of laches? As the majority recognizes, Congress enacted a uniform statute of limitations for copyright claims in 1957 so that federal courts, in determining timeliness, no longer had to borrow Cite as: 572 U. S. (2014) 7 BREYER, J., dissenting from state law which varied from place to place. See ante, at 3–4. Nothing in the 1957 Act—or anywhere else in the text of the copyright statute—indicates that Congress also sought to bar the operation of laches. The Copyright Act is silent on the subject. And silence is consistent, not inconsistent, with the application of equitable doctrines. For one thing, the legislative history for shows that Congress chose not to “specifically enumerat[e] certain equitable considerations which might be advanced in connection with civil copyright actions” because it under- stood that “ ‘[f]ederal district courts, generally, recognize these equitable defenses anyway.’ ” S. Rep. No. 1014, 85th Cong., 1st Sess., 2–3 (1957) (quoting the House Judiciary Committee). Courts prior to 1957 had often applied laches in federal copyright cases. See, e.g., (assuming laches was an available defense in a copyright suit); Edwin L. Wied (applying laches to bar a copyright suit); D. O. Haynes & 216–218 (CA2 1929) (same). Congress expected they would continue to do so. Furthermore, this Court has held that federal courts may “appl[y] equitable doctrines that may toll or limit the time period” for suit when applying a statute of limita- tions, because a statutory “filing period” is a “requirement” subject to adjustment “ ‘when equity so requires.’ ” Mor- –122 ; emphasis added). This Court has read laches into statutes of limitations otherwise silent on the topic of equitable doctrines in a multitude of contexts, as have lower courts. See, e.g., Mor, (“an employer may raise a laches defense” under Title VII); Bay Area and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Cal., 522 U.S. 192, 205 (1997) (similar, in respect to suits under the 8 PETRELLA v. METRO-GOLDWYN-MAYER, INC. BREYER, J., dissenting Multiemployer Pension Plan Amendments Act of 1980 (MPPAA)); Abbott 155 (1967) (similar, in respect to an action for declaratory and injunctive relief under the Administrative Procedure Act); (similar, in the case of a property action brought within New Mexico’s statute of limitations); Alsop v. Riker, 155 U.S. 448, 460 (1894) (holding that “independently of the statute of limitations,” the contract action was barred “because of laches”); & Employers Welfare Trust of (CA7 2002) (laches available “in a suit against an [Employee Retirement Income Security Act of 1974] (ERISA)] plan for benefits”); Hot 822–823 (CA7 1999) (laches available in a Lanham Act suit filed within the limitations period). Unless Congress indicates otherwise, courts normally assume that equita- ble rules continue to operate alongside limitations periods, and that equity applies both to plaintiffs and to defend- ants. See Astoria Fed. Sav. & Loan Assn. v. Solimino, 501 U.S. 104, (1991) (“Congress is understood to legislate against a background of common-law adjudicatory princi- ples” and to incorporate them “except when a statutory purpose to the contrary is evident” (internal quotation marks and citation omitted)); (“Unless otherwise provided by statute, all the inherent equitable powers of the Dis- trict Court are available for the proper and complete exercise of that jurisdiction”). The Court today comes to a different conclusion. It reads (b)’s silence as preserving doctrines that lengthen the period for suit when equitable considerations favor the plaintiff (e.g., equitable tolling), but as foreclos- ing a doctrine that would shorten the period when equity favors the defendant (i.e., laches). See ante, at 15–16, 19– 20. I do not understand the logic of reading a silent stat- Cite as: 572 U. S. (2014) 9 BREYER, J., dissenting ute in this manner. Fourth, the majority defends its rule by observing that laches was “developed by courts of equity,” and that this Court has “cautioned against invoking laches to bar legal relief ” even following the merger of law and equity in 1938. Ante, at 12–13. The majority refers to three cases that offer support for this proposition, but none is deter- minative. In the first, Holmberg v. Armbrecht, 327 U.S. 392 the Court said: “If Congress explicitly puts a limit upon the time for enforcing a right which it created, there is an end of the matter. “Traditionally and for good reasons, statutes of limita- tion are not controlling measures of equitable relief.” –396. This statement, however, constituted part of the Court’s explanation as to why a federal statute, silent about limi- tations, should be applied consistently with “historic prin- ciples of equity in the enforcement of federally-created equitable rights” rather than with New York’s statute of limitations. The case had nothing to do with whether laches governs in actions at law. The lawsuit in Holmberg had been brought “in equity,” and the Court remanded for a determination of whether the petitioners were “chargeable with laches.” The second case the majority cites, & provides some additional sup- port, but not much. There, the Court cited a 1935 case for the proposition that “ ‘[l]aches within the term of the stat- ute of limitations is no defense at law.’ ” ). But concerned a federal securities statute that con- tained both a 2-year statute of limitations, running from the time of “discovery,” and a 5-year statute of repose, 10 PETRELLA v. METRO-GOLDWYN-MAYER, INC. BREYER, J., dissenting running from the time of a “violation.” at 638 (citing 28 U.S. C. Given that repose statutes set “an outside limit” on suit and are generally “inconsistent with tolling” and similar equitable doctrines, the Court held that the 2-year limitations period at issue was not subject to an “inquiry notice” rule or, by analogy, to laches. Lampf, Pleva, Lipkind, Prupis & Petigrow v. Gilbertson, 501 U.S. 350, 363 (1991) (internal quotation marks and citation omitted); at 650–652. did not suggest that statutes of limitations are always or normally incon- sistent with equitable doctrines when plaintiffs seek dam- ages. It simply found additional support for its conclusion in a case that this Court decided before the merger of law and equity. And here, unlike in the statute of limitations is not accompanied by a corollary statute of repose. Third, in County of the Court said in a footnote that “application of the equitable defense of laches in an action at law would be novel indeed.” This statement was made in light of special policies re- lated to Indian tribes, which the Court went on to discuss in the following sentences. Ib In any event, Oneida did not resolve whether laches was available to the defend- ants, for the lower court had not ruled on the issue. at 244–245. In sum, there is no reason to believe that the Court meant any of its statements in Holmberg, or Oneida to announce a general rule about the availability of laches in actions for legal relief, whenever Congress pro- vides a statute of limitations. To the contrary, the Court has said more than once that a defendant could invoke laches in an action for damages (even though no assertion of the defense had actually been made in the case), despite a fixed statute of limitations. See Mor, 536 U.S., at 116–119, 121–122 (laches available in hostile work envi- Cite as: 572 U. S. (2014) 11 BREYER, J., dissenting ronment claims seeking damages under Title VII); Bay Area (laches available in ac- tions for “withdrawal liability assessment[s]” under the MPPAA). Lower courts have come to similar holdings in a wide array of circumstances—often approving not only of the availability of the laches defense, but of its application to the case at hand. E.g., Cayuga Indian Nation of N. Y. v. Pataki, (laches avail- able in a “possessory land claim” in which the District Court awarded damages, whether “characterized as an action at law or in equity,” and dismissing the action due to laches); – (laches avail- able in suits under ERISA for benefits, but not warranted in that case); Hot –827 (“[T]he ap- plication of the doctrine of laches to Hot ’s Lanham Act claims [requesting damages] by the district court was proper”); A. C. Aukerman (en banc) (laches available in patent suit claiming damages, and remanding for whether the defense was successful); 1376–1383 (CAFed 1988) (en banc) (same, in suit seeking backpay). Even if we focus only upon federal copyright litigation, four of the six Circuits to have considered the matter have held that laches can bar claims for legal relief. See 695 F.3d 946, 956 (CA9 2012) (case below, barring all copy- right claims due to laches); Peter Letterese & Assocs., Inc. v. World Inst. of Scientology Enterprises, Int’l, 533 F.3d 1287, 1319–1322 (CA11 2008) (laches can bar copyright claims for retrospective damages); 474 F.3d, at 234– (“laches can be argued ‘regardless of whether the suit is at law or in equity,’ ” and holding that while the plaintiffs could obtain damages and an injunction, their request for additional equitable relief “smack[ed] of the inequity against which Judge Hand cautioned in and which the judicial system should abhor” (quoting Team- 12 PETRELLA v. METRO-GOLDWYN-MAYER, INC. BREYER, J., dissenting )); Jacobsen v. Deseret Book Co., 287 F. 3d 936, 950–951 (CA10 2002) (laches available in “ ‘rare cases,’ ” and failing to draw a distinction in the type of remedy sought (citation omitted). But see New Era Publi- cations 584–585 (CA2 1989) (laches can bar claims for injunctive relief, but not damages, under the Copyright Act); Lyons Partner- ship, L. 798– 799 (laches unavailable in copyright cases altogether). Perhaps more importantly, in permitting laches to apply to copyright claims seeking equitable relief but not to those seeking legal relief, the majority places insufficient weight upon the rules and practice of modern litigation. Since 1938, Congress and the Federal Rules have replaced what would once have been actions “at law” and actions “in equity” with the “civil action.” Fed. Rule Civ. Proc. 2 (“There is one form of action—the civil action”). A federal civil action is subject to both equitable and legal defenses. Fed. Rule Civ. Proc. 8(c)(1) (“In responding to a pleading, a party must affirmatively state any avoidance or affirma- tive defense, including: estoppel laches [and] statute of limitations”). Accordingly, since 1938, federal courts have frequently allowed defendants to assert what were formerly equitable defenses—including laches—in what were formerly legal actions. See at 10–11 (citing cases). Why should copyright be treated differ- ently? Indeed, the majority concedes that “restitutional remedies” like “profits” (which are often claimed in copy- right cases) defy clear classification as “equitable” or “legal.” Ante, at 2, n. 1 (internal quotation marks omit- ted). Why should lower courts have to make these uneasy and unnatural distinctions? Fifth, the majority believes it can prevent the inequities that laches seeks to avoid through the use of a different doctrine, namely equitable estoppel. Ante, at 19. I doubt Cite as: 572 U. S. (2014) 13 BREYER, J., dissenting that is so. As the majority recognizes, “the two defenses are differently oriented.” Ib The “gravamen” of estop- pel is a misleading representation by the plaintiff that the defendant relies on to his detriment. 6 Patry, Copyright at 20–110 to 20–112. The gravamen of laches is the plaintiff ’s unreasonable delay, and the consequent prejudice to the defendant. at 20–96. Where due to the passage of time, evidence favorable to the de- fense has disappeared or the defendant has continued to invest in a derivative work, what misleading representa- tion by the plaintiff is there to estop? In sum, as the majority says, the doctrine of laches may occupy only a “ ‘little place’ ” in a regime based upon stat- utes of limitations. Ante, at 20 (quoting 1 D. Dobbs, Law of Remedies p. 152 (2d ed. 1993)). But that place is an important one. In those few and unusual cases where a plaintiff unreasonably delays in bringing suit and consequently causes inequitable harm to the defendant, the doctrine permits a court to bring about a fair result. I see no reason to erase the doctrine from copyright’s lexi- con, not even in respect to limitations periods applicable to damages actions. Consequently, with respect, I dissent

Justice Breyer

majority

Dorsey v. United States

2012-06-21

https://www.courtlistener.com/opinion/802791/dorsey-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/802791/

2011-071

Federal statutes impose mandatory minimum prison sentences upon those convicted of federal drug crimes. These statutes typically base the length of a minimum prison term upon the kind and amount of the drug in- volved. Until 2010, the relevant statute imposed upon an offender who dealt in powder cocaine the same sentence it imposed upon an offender who dealt in one one-hundredth that amount of crack cocaine. It imposed, for example, the same 5-year minimum term upon (1) an offender convicted of possessing with intent to distribute 500 grams of pow- der cocaine as upon (2) an offender convicted of possessing with intent to distribute 5 grams of crack. In 2010, Congress enacted a new statute reducing the crack-to-powder cocaine disparity from 100-to-1 to 18-to-1. Fair Sentencing Act, 124 Stat. 2372. The new statute took 2 DORSEY v. UNITED STATES Opinion of the Court effect on August 3, 2010. The question here is whether the Act’s more lenient penalty provisions apply to offend- ers who committed a crack cocaine crime before August 3, 2010, but were not sentenced until after August 3. We hold that the new, more lenient mandatory minimum provisions do apply to those pre-Act offenders. I The underlying question before us is one of congres- sional intent as revealed in the Fair Sentencing Act’s lan- guage, structure, and basic objectives. Did Congress intend the Act’s more lenient penalties to apply to pre-Act offenders sentenced after the Act took effect? We recognize that, because of important background principles of interpretation, we must assume that Con- gress did not intend those penalties to apply unless it clearly indicated to the contrary. See infra, at 10–13. But we find that clear indication here. We rest our conclu- sion primarily upon the fact that a contrary determination would seriously undermine basic Federal Sentencing Guidelines objectives such as uniformity and proportional- ity in sentencing. Indeed, seen from that perspective, a contrary determination would (in respect to relevant groups of drug offenders) produce sentences less uniform and more disproportionate than if Congress had not en- acted the Fair Sentencing Act at all. See infra, at 14–18. Because our conclusion rests upon an analysis of the Guidelines-based sentencing system Congress has estab- lished, we describe that system at the outset and include an explanation of how the Guidelines interact with federal statutes setting forth specific terms of imprisonment. A The Guidelines originate in the Sentencing Reform Act of 1984, 98 Stat. 1987. That statute created a federal Sentencing Commission instructed to write guidelines that Cite as: 567 U. S. ____ (2012) 3 Opinion of the Court judges would use to determine sentences imposed upon offenders convicted of committing federal crimes. 28 U.S. C. §§991, 994. Congress thereby sought to increase transparency, uniformity, and proportionality in sentenc- ing. United States Sentencing Commission (USSC or Commission), Guidelines Manual §1A1.3, p. 2 (Nov. 2011) (USSG); see 28 U.S. C. §§991(b)(1), 994(f). The Sentencing Reform Act directed the Commission to create in the Guidelines categories of offense behavior (e.g., “ ‘bank robbery/committed with a gun/$2500 taken’ ”) and offender characteristics (e.g., “one prior conviction”). USSG §1A1.2, at 1; see 28 U.S. C. §§994(a)–(e). A sen- tencing judge determines a Guidelines range by (1) finding the applicable offense level and offender category and then (2) consulting a table that lists proportionate sentenc- ing ranges (e.g., 18 to 24 months of imprisonment) at the intersections of rows (marking offense levels) and columns (marking offender categories). USSG ch. 5, pt. A, Sen- tencing Table, §§5E1.2, 7B1.4; see also §1A1.4(h), at 11. The Guidelines, after telling the judge how to determine the applicable offense level and offender category, instruct the judge to apply the intersection’s range in an ordinary case, but they leave the judge free to depart from that range in an unusual case. See 18 U.S. C. §3553(b); USSG §§1A1.2, at 1–2, 1A1.4(b), at 6–7. This Court has held that the Guidelines are now advisory. United States v. Booker, 543 U.S. 220, 245, 264 (2005); see Kimbrough v. United States, 552 U.S. 85, 91 (2007). The Guidelines determine most drug-crime offense lev- els in a special way. They set forth a Drug Quantity Table (or Table) that lists amounts of various drugs and associates different amounts with different “Base Offense Levels” (to which a judge may add or subtract levels de- pending upon the “specific” characteristics of the offender’s behavior). See USSG §2D1.1. The Table, for example, associates 400 to 499 grams of powder cocaine with a base 4 DORSEY v. UNITED STATES Opinion of the Court offense level of 24, a level that would mean for a first-time offender a prison term of 51 to 63 months. §2D1.1(c). In 1986, Congress enacted a more specific, drug-related sentencing statute, the Anti-Drug Abuse Act (1986 Drug Act), 100 Stat. 3207. That statute sets forth mandatory minimum penalties of 5 and 10 years applicable to a drug offender depending primarily upon the kind and amount of drugs involved in the offense. See 21 U.S. C. §§841(b)(1) (A)–(C) (2006 ed. and Supp. IV). The minimum applicable to an offender convicted of possessing with intent to dis- tribute 500 grams or more of powder cocaine is 5 years, and for 5,000 grams or more of powder the minimum is 10 years. §§841(b)(1)(A)(ii), (B)(ii). The 1986 Drug Act, however, treated crack cocaine crimes as far more serious. It applied its 5-year minimum to an offender convicted of possessing with intent to distribute only 5 grams of crack (as compared to 500 grams of powder) and its 10-year minimum to one convicted of possessing with intent to distribute only 50 grams of crack (as compared to 5,000 grams of powder), thus producing a 100-to-1 crack-to- powder ratio. §§841(b)(1)(A)(iii), (B)(iii) (2006 ed.). The 1986 Drug Act, like other federal sentencing stat- utes, interacts with the Guidelines in an important way. Like other sentencing statutes, it trumps the Guidelines. Thus, ordinarily no matter what the Guidelines provide, a judge cannot sentence an offender to a sentence beyond the maximum contained in the federal statute setting forth the crime of conviction. Similarly, ordinarily no matter what range the Guidelines set forth, a sentencing judge must sentence an offender to at least the minimum prison term set forth in a statutory mandatory minimum. See 28 U.S. C. §§994(a), (b)(1); USSG §5G1.1; Neal v. United States, 516 U.S. 284, 289–290, 295 (1996). Not surprisingly, the Sentencing Commission incorpo- rated the 1986 Drug Act’s mandatory minimums into the first version of the Guidelines themselves. Kimbrough, Cite as: 567 U. S. ____ (2012) 5 Opinion of the Court supra, at 96–97. It did so by setting a base offense level for a first-time drug offender that corresponded to the lowest Guidelines range above the applicable mandatory minimum. USSC, Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice Sys- tem 53–54 (Oct. 2011) (2011 Report). Thus, the first Guidelines Drug Quantity Table associated 500 grams of powder cocaine with an offense level of 26, which for a first-time offender meant a sentencing range of 63 to 78 months (just above the 5-year minimum), and it associated 5,000 grams of powder cocaine with an offense level of 32, which for a first-time offender meant a sentencing range of 121 to 151 months (just above the 10-year minimum). USSG §2D1.1 (Oct. 1987). Further reflecting the 1986 Drug Act’s 100-to-1 crack-to-powder ratio, the Table asso- ciated an offense level of 26 with 5 grams of crack and an offense level of 32 with 50 grams of crack. Ibid. In addition, the Drug Quantity Table set offense levels for small drug amounts that did not trigger the 1986 Drug Act’s mandatory minimums so that the resulting Guide- lines sentences would remain proportionate to the sen- tences for amounts that did trigger these minimums. 2011 Report 54. Thus, the Table associated 400 grams of pow- der cocaine (an amount that fell just below the amount triggering the 1986 Drug Act’s 5-year minimum) with an offense level of 24, which for a first-time offender meant a sentencing range of 51 to 63 months (the range just below the 5-year minimum). USSG §2D1.1 (Oct. 1987). Follow- ing the 100-to-1 crack-to-powder ratio, the Table associated four grams of crack (an amount that also fell just below the amount triggering the 1986 Drug Act’s 5-year mini- mum) with an offense level of 24. Ibid. The Commission did this not because it necessarily thought that those levels were most in keeping with past sentencing practice or would independently have reflected a fair set of sentences, but rather because the Commission 6 DORSEY v. UNITED STATES Opinion of the Court believed that doing so was the best way to keep similar drug-trafficking sentences proportional, thereby satisfying the Sentencing Reform Act’s basic “proportionality” objec- tive. See Kimbrough, 552 U. S., at 97; USSG §1A1.3 (Nov. 2011); 2011 Report 53–54, 349, and n. 845. For this rea- son, the Commission derived the Drug Quantity Table’s entire set of crack and powder cocaine offense levels by using the 1986 Drug Act’s two (5- and 10-year) minimum amounts as reference points and then extrapolating from those two amounts upward and downward to set propor- tional offense levels for other drug amounts. Ibid. B During the next two decades, the Commission and others in the law enforcement community strongly criti- cized Congress’ decision to set the crack-to-powder manda- tory minimum ratio at 100-to-1. The Commission issued four separate reports telling Congress that the ratio was too high and unjustified because, for example, research showed the relative harm between crack and powder cocaine less severe than 100-to-1, because sentences em- bodying that ratio could not achieve the Sentencing Re- form Act’s “uniformity” goal of treating like offenders alike, because they could not achieve the “proportionality” goal of treating different offenders (e.g., major drug traf- fickers and low-level dealers) differently, and because the public had come to understand sentences embodying the 100-to-1 ratio as reflecting unjustified race-based differ- ences. Kimbrough, supra, at 97–98; see, e.g., USSC, Special Report to the Congress: Cocaine and Federal Sen- tencing Policy 197–198 (Feb. 1995) (1995 Report); USSC, Special Report to Congress: Cocaine and Federal Sentenc- ing Policy 8 (Apr. 1997) (1997 Report); USSC, Report to Congress: Cocaine and Federal Sentencing Policy 91, 103 (May 2002) (2002 Report); USSC, Report to Congress: Cocaine and Federal Sentencing Policy 8 (May 2007) (2007 Cite as: 567 U. S. ____ (2012) 7 Opinion of the Court Report). The Commission also asked Congress for new legislation embodying a lower crack-to-powder ratio. 1995 Report 198–200; 1997 Report 9–10; 2002 Report 103– 107; 2007 Report 6–9. And the Commission recommended that the legislation “include” an “emergency amendment” allowing “the Commission to incorporate the statutory changes” in the Guidelines while “minimiz[ing] the lag between any statutory and guideline modifications for cocaine offenders.” Id., at 9. In 2010, Congress accepted the Commission’s recom- mendations, see 2002 Report 104; 2007 Report 8–9, and n. 26, and enacted the Fair Sentencing Act into law. The Act increased the drug amounts triggering mandatory minimums for crack trafficking offenses from 5 grams to 28 grams in respect to the 5-year minimum and from 50 grams to 280 grams in respect to the 10-year minimum (while leaving powder at 500 grams and 5,000 grams respectively). §2(a), 124 Stat. 2372. The change had the effect of lowering the 100-to-1 crack-to-powder ratio to 18- to-1. (The Act also eliminated the 5-year mandatory minimum for simple possession of crack. §3, 124 Stat. 2372.) Further, the Fair Sentencing Act instructed the Com- mission to “make such conforming amendments to the Federal sentencing guidelines as the Commission deter- mines necessary to achieve consistency with other guide- line provisions and applicable law.” §8(2), id., at 2374. And it directed the Commission to “promulgate the guide- lines, policy statements, or amendments provided for in this Act as soon as practicable, and in any event not later than 90 days” after the new Act took effect. §8(1), ibid. The Fair Sentencing Act took effect on August 3, 2010. The Commission promulgated conforming emergency Guidelines amendments that became effective on Novem- ber 1, 2010. 75 Fed. Reg. 66188 (2010). A permanent version of those Guidelines amendments took effect on 8 DORSEY v. UNITED STATES Opinion of the Court November 1, 2011. See 76 id., at 24960 (2011). C With this background in mind, we turn to the relevant facts of the cases before us. Corey Hill, one of the peti- tioners, unlawfully sold 53 grams of crack in March 2007, before the Fair Sentencing Act became law. App. in No. 11–5721, pp. 6, 83 (hereinafter Hill App.). Under the 1986 Drug Act, an offender who sold 53 grams of crack was subject to a 10-year mandatory minimum. 21 U.S. C. §841(b)(1)(A)(iii) (2006 ed.). Hill was not sentenced, how- ever, until December 2010, after the Fair Sentencing Act became law and after the new Guidelines amendments had become effective. Hill App. 83–94. Under the Fair Sentencing Act, an offender who sold 53 grams of crack was subject to a 5-year, not a 10-year, minimum. §841(b)(1)(B)(iii) (2006 ed., Supp. IV). The sentencing judge stated that, if he thought that the Fair Sentencing Act applied, he would have sentenced Hill to that Act’s 5- year minimum. Id., at 69. But he concluded that the Fair Sentencing Act’s lower minimums apply only to those who committed a drug crime after August 3, 2010—the Act’s effective date. Id., at 65, 68. That is to say, he concluded that the new Act’s more lenient sentences did not apply to those who committed a crime before August 3, even if they were sentenced after that date. Hence, the judge sen- tenced Hill to 10 years of imprisonment. Id., at 78. The Court of Appeals for the Seventh Circuit affirmed. 417 Fed. Appx. 560 (2011). The second petitioner, Edward Dorsey (who had previ- ously been convicted of a drug felony), unlawfully sold 5.5 grams of crack in August 2008, before the Fair Sentencing Act took effect. App. in No. 5683, pp. 9, 48–49, 57–58 (hereinafter Dorsey App.). Under the 1986 Drug Act, an offender such as Dorsey with a prior drug felony who sold 5.5 grams of crack was subject to a 10-year minimum. Cite as: 567 U. S. ____ (2012) 9 Opinion of the Court §841(b)(1)(B)(iii) (2006 ed.). Dorsey was not sentenced, however, until September 2010, after the new Fair Sen- tencing Act took effect. Id., at 84–95. Under the Fair Sentencing Act, such an offender who sold 5.5 grams of crack was not subject to a mandatory minimum at all, for 5.5 grams is less than the 28 grams that triggers the new Act’s mandatory minimum provisions. §841(b)(1)(B)(iii) (2006 ed., Supp. IV). Dorsey asked the judge to apply the Fair Sentencing Act’s more lenient statutory penalties. Id., at 54–55. Moreover, as of Dorsey’s sentencing in September 2010, the unrevised Guidelines (reflecting the 1986 Drug Act’s old minimums) were still in effect. The Commission had not yet finished revising the Guidelines to reflect the new, lower statutory minimums. And the basic sentencing statute, the Sentencing Reform Act, provides that a judge shall apply the Guidelines that “are in effect on the date the defendant is sentenced.” 18 U.S. C. §3553(a)(4)(A)(ii). The sentencing judge, however, had the legal authority not to apply the Guidelines at all (for they are advisory). But he also knew that he could not ignore a minimum sentence contained in the applicable statute. Dorsey App. 67–68. The judge noted that, even though he was sentenc- ing Dorsey after the effective date of the Fair Sentencing Act, Dorsey had committed the underlying crime prior to that date. Id., at 69–70. And he concluded that the 1986 Drug Act’s old minimums, not the new Fair Sentencing Act, applied in those circumstances. Ibid. He consequently sentenced Dorsey to the 1986 Drug Act’s 10-year man- datory minimum term. Id., at 80. The Court of Appeals for the Seventh Circuit affirmed, United States v. Fisher, 635 F.3d 336 (2011), and denied rehearing en banc, 646 F.3d 429 (2011) (per curiam); see also United States v. Holcomb, 657 F.3d 445 (CA7 2011). The Courts of Appeals have come to different conclu- sions as to whether the Fair Sentencing Act’s more lenient 10 DORSEY v. UNITED STATES Opinion of the Court mandatory minimums apply to offenders whose unlawful conduct took place before, but whose sentencing took place after, the date that Act took effect, namely, August 3, 2010. Compare United States v. Douglas, 644 F.3d 39, 42–44 (CA1 2011) (Act applies), and United States v. Dixon, 648 F.3d 195, 203 (CA3 2011) (same), with 635 F. 3d, at 339–340 (Act does not apply), United States v. Sidney, 648 F.3d 904, 910 (CA8 2011) (same), and United States v. Tickles, 661 F.3d 212, 215 (CA5 2011) (per curiam) (same). In light of that disagreement, we granted Hill’s and Dorsey’s petitions for certiorari. Since petitioners and the Government both take the position that the Fair Sentencing Act’s new minimums do apply in these circumstances, we appointed as amicus curiae Miguel Estrada to argue the contrary position. He has ably discharged his responsibilities. II A The timing issue before us is difficult in part because relevant language in different statutes argues in opposite directions. See Appendix A, infra. On the one hand, a federal saving statute, Act of Feb. 25, 1871 (1871 Act), §4, 16 Stat. 432, phrased in general terms, provides that a new criminal statute that “repeal[s]” an older criminal statute shall not change the penalties “incurred” under that older statute “unless the repealing Act shall so ex- pressly provide.” 1 U.S. C. §109. Case law makes clear that the word “repeal” applies when a new statute simply diminishes the penalties that the older statute set forth. See Warden v. Marrero, 417 U.S. 653, 659–664 (1974); see also United States v. Tynen, 11 Wall. 88, 92 (1871). Case law also makes clear that penalties are “incurred” under the older statute when an offender becomes subject to them, i.e., commits the underlying conduct that makes the offender liable. See United States v. Reisinger, 128 U.S. Cite as: 567 U. S. ____ (2012) 11 Opinion of the Court 398, 401 (1888); Great Northern R. Co. v. United States, 208 U.S. 452, 464–470 (1908). On the other hand, the Sentencing Reform Act says that, regardless of when the offender’s conduct occurs, the applicable Guidelines are the ones “in effect on the date the defendant is sentenced.” 18 U.S. C. §3553(a)(4)(A)(ii). And the Fair Sentencing Act requires the Commission to change the Guidelines in the wake of the Act’s new minimums, making them consistent with “other guideline provisions and applicable law.” §8(2), 124 Stat. 2374. Courts that have held that they must apply the old, higher 1986 Drug Act minimums to all pre-Act offenders, including those sentenced after the Fair Sentencing Act took effect, have emphasized that the 1871 Act requires that result unless the Fair Sentencing Act either expressly says or at least by fair implication implies the contrary. See 635 F. 3d, at 339–340; Sidney, supra, at 906–908; Tickles, supra, at 214–215; see also Holcomb, supra, at 446–448 (opinion of Easterbrook, J.). Courts that have concluded that the Fair Sentencing Act’s more lenient penalties apply have found in that Act, together with the Sentencing Reform Act and other related circumstances, indicia of a clear congressional intent to apply the new Act’s minimums. See Douglas, supra, at 42–44; Dixon, supra, at 199–203; see also Holcomb, 657 F. 3d, at 454– 457 (Williams, J., dissenting from denial of rehearing en banc); id., at 461–463 (Posner, J., dissenting from denial of rehearing en banc). We too take the latter view. Six considerations, taken together, convince us that Congress intended the Fair Sentencing Act’s more lenient penalties to apply to those offenders whose crimes preceded August 3, 2010, but who are sentenced after that date. First, the 1871 saving statute permits Congress to apply a new Act’s more lenient penalties to pre-Act offenders without expressly saying so in the new Act. It is true that the 1871 Act uses the words “expressly provide.” 1 12 DORSEY v. UNITED STATES Opinion of the Court U. S. C. §109. But the Court has long recognized that this saving statute creates what is in effect a less demanding interpretive requirement. That is because statutes en- acted by one Congress cannot bind a later Congress, which remains free to repeal the earlier statute, to exempt the current statute from the earlier statute, to modify the earlier statute, or to apply the earlier statute but as modi- fied. See, e.g., Fletcher v. Peck, 6 Cranch 87, 135 (1810); Reichelderfer v. Quinn, 287 U.S. 315, 318 (1932). And Congress remains free to express any such intention either expressly or by implication as it chooses. Thus, the Court has said that the 1871 Act “cannot justify a disregard of the will of Congress as manifested either expressly or by necessary implication in a subse- quent enactment.” Great Northern R. Co., supra, at 465 (emphasis added). And in a comparable context the Court has emphasized that the Administrative Procedure Act’s use of the word “expressly” does not require Congress to use any “magical passwords” to exempt a later statute from the provision. Marcello v. Bonds, 349 U.S. 302, 310 (1955). Without requiring an “express” statement, the Court has described the necessary indicia of congressional intent by the terms “necessary implication,” “clear impli- cation,” and “fair implication,” phrases it has used inter- changeably. Great Northern R. Co., supra, at 465, 466; Hertz v. Woodman, 218 U.S. 205, 218 (1910); Marrero, supra, at 660, n. 10. One Member of the Court has said we should determine whether “the plain import of a later statute directly conflicts with an earlier statute,” and, if so, “the later enactment governs, regardless of its compli- ance with any earlier-enacted requirement of an express reference or other ‘magical password.’ ” Lockhart v. United States, 546 U.S. 142, 149 (2005) (SCALIA, J., concurring). Hence, the Court has treated the 1871 Act as setting forth an important background principle of interpretation. The Court has also assumed Congress is well aware of the Cite as: 567 U. S. ____ (2012) 13 Opinion of the Court background principle when it enacts new criminal stat- utes. E.g., Great Northern R. Co., supra, at 465; Hertz, supra, at 217; cf. Marcello, supra, at 310. And the prin- ciple requires courts, before interpreting a new criminal statute to apply its new penalties to a set of pre-Act of- fenders, to assure themselves that ordinary interpretive considerations point clearly in that direction. Words such as “plain import,” “fair implication,” or the like reflect the need for that assurance. And it is that assurance, which we shall assume is conveyed by the phrases “plain import” or “fair implication,” that we must look for here. Second, the Sentencing Reform Act sets forth a special and different background principle. That statute says that when “determining the particular sentence to be imposed” in an initial sentencing, the sentencing court “shall con- sider,” among other things, the “sentencing range” estab- lished by the Guidelines that are “in effect on the date the defendant is sentenced.” 18 U.S. C. §3553(a)(4)(A)(ii) (emphasis added). Although the Constitution’s Ex Post Facto Clause, Art. I, §9, cl. 3, prohibits applying a new Act’s higher penalties to pre-Act conduct, it does not pro- hibit applying lower penalties. See Calder v. Bull, 3 Dall. 386, 390–391 (1798); Collins v. Youngblood, 497 U.S. 37, 41–44 (1990). The Sentencing Commission has conse- quently instructed sentencing judges to “use the Guide- lines Manual in effect on the date that the defendant is sentenced,” regardless of when the defendant committed the offense, unless doing so “would violate the ex post facto clause.” USSG §1B1.11. And therefore when the Com- mission adopts new, lower Guidelines amendments, those amendments become effective to offenders who committed an offense prior to the adoption of the new amendments but are sentenced thereafter. Just as we assume Congress was aware of the 1871 Act’s background norm, so we assume that Congress was aware of this different back- ground sentencing principle. 14 DORSEY v. UNITED STATES Opinion of the Court Third, language in the Fair Sentencing Act implies that Congress intended to follow the Sentencing Reform Act background principle here. A section of the Fair Sentenc- ing Act entitled “Emergency Authority for United States Sentencing Commission” requires the Commission to prom- ulgate “as soon as practicable” (and not later than 90 days after August 3, 2010) “conforming amendments” to the Guidelines that “achieve consistency with other guide- line provisions and applicable law.” §8, 124 Stat. 2374. Read most naturally, “applicable law” refers to the law as changed by the Fair Sentencing Act, including the provi- sion reducing the crack mandatory minimums. §2(a), id., at 2372. As the Commission understood this provi- sion, achieving consistency with “other guideline provi- sions” means reducing the base offense levels for all crack amounts proportionally (using the new 18-to-1 ratio), in- cluding the offense levels governing small amounts of crack that did not fall within the scope of the mandatory minimum provisions. 75 Fed. Reg. 66191. And consis- tency with “other guideline provisions” and with prior Com- mission practice would require application of the new Guidelines amendments to offenders who committed their offense prior to the new amendments’ effective date but were sentenced thereafter. See USSG §1B1.11(a); e.g., USSG App. C, amdts. 706, 711 (Supp. Nov. 2004–Nov. 2007); see also Memorandum from G. Schmitt, L. Reed, & K. Cohen, USSC, to Chair Hinojosa et al., Subject: Analy- sis of the Impact of the Crack Cocaine Amendment if Made Retroactive 23 (Oct. 3, 2007). Cf. USSG App. C, amdt. 571 (amendment increasing restitution, which may present ex post facto and one-book-rule concerns, would apply only to defendants sentenced for post-amendment offenses), discussed post, at 5 (SCALIA, J., dissenting). Fourth, applying the 1986 Drug Act’s old mandatory minimums to the post-August 3 sentencing of pre-August 3 offenders would create disparities of a kind that Congress Cite as: 567 U. S. ____ (2012) 15 Opinion of the Court enacted the Sentencing Reform Act and the Fair Sentenc- ing Act to prevent. Two individuals with the same number of prior offenses who each engaged in the same criminal conduct involving the same amount of crack and were sentenced at the same time would receive radically differ- ent sentences. For example, a first-time post-Act offender with five grams of crack, subject to a Guidelines range of 21 to 27 months, could receive two years of imprisonment, while an otherwise identical pre-Act offender would have to receive the 5-year mandatory minimum. Compare USSG §2D1.1(c) (Nov. 2011) with 21 U.S. C. §841(b)(1)(B) (2006 ed.). A first-time post-Act 50-gram offender would be subject to a Guidelines range of less than six years of imprisonment, while his otherwise identical pre-Act coun- terpart would have to receive the 10-year mandatory minimum. Compare USSG §2D1.1(c) (Nov. 2011) with 21 U.S. C. §841(b)(1)(A) (2006 ed.). Moreover, unlike many prechange/postchange discrep- ancies, the imposition of these disparate sentences in- volves roughly contemporaneous sentencing, i.e., the same time, the same place, and even the same judge, thereby highlighting a kind of unfairness that modern sentenc- ing statutes typically seek to combat. See, e.g., 28 U.S. C. §991(b)(1)(B) (purposes of Guidelines-based sentencing include “avoiding unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct”); S. Rep. No. 98– 223, p. 74 (1983) (explaining rationale for using same, current Guidelines for all roughly contemporaneous sen- tencings). Further, it would involve imposing upon the pre-Act offender a pre-Act sentence at a time after Con- gress had specifically found in the Fair Sentencing Act that such a sentence was unfairly long. Finally, one cannot treat such problems as if they were minor ones. Given the 5-year statute of limitations for federal drug offenses, the 11-month median time between 16 DORSEY v. UNITED STATES Opinion of the Court indictment and sentencing for those offenses, and the approximately 5,000 federal crack offenders convicted each year, many pre-Act offenders were not (and will not be) sentenced until after August 3, 2010, when the new, more lenient mandatory minimums took effect. See 18 U.S. C. §3282(a); Administrative Office of United States Courts, Judicial Business of the United States Courts, p. 272 (2010) (Table D–10); 2011 Report 191. Fifth, not to apply the Fair Sentencing Act would do more than preserve a disproportionate status quo; it would make matters worse. It would create new anomalies—new sets of disproportionate sentences—not previously present. That is because sentencing courts must apply new Guide- lines (consistent with the Fair Sentencing Act’s new min- imums) to pre-Act offenders, see supra, at 13–14, and the 1986 Drug Act’s old minimums would trump those new Guidelines for some pre-Act offenders but not for all of them—say, pre-Act offenders who possessed crack in small amounts not directly the subject of mandatory minimums. Consider, for example, a first-time offender convicted of possessing with intent to distribute four grams of crack. No mandatory sentence, under the 1986 Drug Act or the Fair Sentencing Act, applies to an offender possessing so small an amount. Yet under the old law, the Commission, charged with creating proportionate sentences, had created a Guidelines range of 41 to 51 months for such an of- fender, a sentence proportional to the 60 months that the 1986 Drug Act required for one who trafficked five grams of crack. See supra, at 5–6; USSG §2D1.1(c) (Nov. 2009). The Fair Sentencing Act, however, requires the Com- mission to write new Guidelines consistent with the new law. The Commission therefore wrote new Guidelines that provide a sentencing range of 21 to 27 months—about two years—for the first-time, 4-gram offender. See USSG §2D1.1(c) (Nov. 2011). And the Sentencing Reform Act Cite as: 567 U. S. ____ (2012) 17 Opinion of the Court requires application of those new Guidelines to all of- fenders (including pre-Act offenders) who are sentenced once those new Guidelines take effect. See 18 U.S. C. §3553(a)(4)(A)(ii). Those new Guidelines must take effect and apply to a pre-Act 4-gram offender, for such an of- fender was never subject to a trumping statutory 1986 Drug Act mandatory minimum. However, unless the Fair Sentencing Act’s new, more lenient mandatory mini- mums apply to pre-Act offenders, an otherwise identical of- fender who possessed five grams would have to receive a 5-year sentence. See 21 U.S. C. §841(b)(1)(B) (2006 ed., Supp. IV). For example, imagine that on July 1, 2010, both Smith and Jones commit a crack crime identical but for the fact that Smith possesses with intent to distribute four grams of crack and Jones five grams. Both are sentenced on December 1, 2010, after the Fair Sentencing Act and the new Guidelines take effect. Smith’s Guidelines sentence would be two years, but unless the Fair Sentencing Act applies, Jones’s sentence would have to be five years. The difference of one gram would make a difference, not of only one year as it did before enactment of the Fair Sentencing Act, but instead of three years. Passage of the new Act, designed to have brought about fairer sentences, would here have created a new disparate sentencing “cliff.” Nor can one say that the new Act would produce dispro- portionalities like this in only a few cases. In fiscal year 2010, 17.8 percent of all crack offenders were convicted of- offenses not subject to the 1986 Drug Act’s minimums. 2011 Report 191. And since those minimums apply only to some drug offenders and they apply in different ways, one can find many similar examples of disproportionalities. See Appendix B, infra. Thus, application of the 1986 Drug Act minimums to pre-Act offenders sentenced after the new Guidelines take effect would produce a crazy quilt of sentences, at odds with Congress’ basic efforts to achieve 18 DORSEY v. UNITED STATES Opinion of the Court more uniform, more proportionate sentences. Congress, when enacting the Fair Sentencing Act, could not have intended any such result. Sixth, we have found no strong countervailing considera- tion. Amicus and the dissent argue that one might read much of the statutory language we have discussed as embodying exceptions, permitting the old 1986 Drug Act minimums to apply to pre-Act offenders sentenced after August 3, 2010, when the Fair Sentencing Act took effect. The words “applicable law” in the new Act, for example, could, linguistically speaking, encompass the 1986 Drug Act minimums applied to those sentenced after August 3. Post, at 4–6 (SCALIA, J., dissenting). Moreover, Congress could have insisted that the Commission write new Guide- lines with special speed to assure itself that new, post- August 3 offenders—but not old, pre-August 3 offenders— would receive the benefit of the new Act. Post, at 6–8. Further, amicus and the dissent note that to apply the new Act’s minimums to the old, pre-August 3 offenders will create a new disparity—one between pre-Act offenders sentenced before August 3 and those sentenced after that date. Post, at 9. We do not believe that these arguments make a critical difference. Even if the relevant statutory language can be read as amicus and the dissent suggest and even if Congress might have wanted Guidelines written speedily simply in order to apply them quickly to new offenders, there is scant indication that this is what Congress did mean by the language in question nor that such was in fact Congress’ motivation. The considerations we have set forth, supra, at 13–17 and this page, strongly suggest the contrary. We also recognize that application of the new minimums to pre-Act offenders sentenced after August 3 will create a new set of disparities. But those disparities, reflecting a line-drawing effort, will exist whenever Congress enacts a Cite as: 567 U. S. ____ (2012) 19 Opinion of the Court new law changing sentences (unless Congress intends re- opening sentencing proceedings concluded prior to a new law’s effective date). We have explained how in federal sentencing the ordinary practice is to apply new penalties to defendants not yet sentenced, while withholding that change from defendants already sentenced. Supra, at 13; compare 18 U.S. C. §3553(a)(4)(A)(ii) with §3582(c). And we have explained how, here, continued application of the old 1986 Drug Act minimums to those pre-Act offend- ers sentenced after August 3 would make matters worse. Supra, at 16–18. We consequently conclude that this particular new disparity (between those pre-Act offenders already sentenced and those not yet sentenced as of August 3) cannot make a critical difference. For these reasons considered as a whole, we conclude that Congress intended the Fair Sentencing Act’s new, lower mandatory minimums to apply to the post-Act sentencing of pre-Act offenders. That is the Act’s “plain import” or “fair implication.” B We add one final point. Several arguments we have discussed involve the language of statutes that determine how new Guidelines take effect. Supra, at 13–14. What about those who committed an offense prior to August 3 and were sentenced after August 3 but before November 1, 2010—a period after the new Act’s effective date but before the new Guidelines first took effect? Do the Fair Sentenc- ing Act’s new mandatory minimums apply to them? In our view, the new Act’s lower minimums apply to them as well. Our reason is that the statute simply in- structs the Commission to promulgate new Guidelines “as soon as practicable” (but no later than 90 days after the Act took effect). §8(1), 124 Stat. 2374. As far as Congress was concerned, the Commission might have (having prepared new Guidelines in advance) promulgated those 20 DORSEY v. UNITED STATES Opinion of the Court Guidelines within a few days—perhaps on August 3 itself. At the same time, the Commission possesses ample au- thority to permit appropriate adjustments to be made in the Guidelines sentences of those sentenced after August 3 but prior to the new Guidelines promulgation. See 28 U.S. C. §994(u) (power to make Guidelines reductions retroactive); 76 Fed. Reg. 41333–41334 (2011) (amended 18-to-1 Guidelines made retroactive). In any event, courts, treating the Guidelines as advisory, possess au- thority to sentence in accordance with the new minimums. For these reasons, if the Fair Sentencing Act’s new minimums apply to all of those sentenced after August 3, 2010 (even if the new Guidelines were not yet ready), it is possible to foresee a reasonably smooth transition. On the other hand, it is difficult to foresee such a transition if the new Act’s application is keyed to a later date, thereby leaving the courts unable to take the new Act fully into account, particularly when that circumstance might create additional disparities and uncertainties that courts and the Commission may be helpless to correct. We have no reason to believe Congress would have wanted to impose an unforeseeable, potentially complex application date. * * * We vacate the Court of Appeals’ judgments and remand these cases for further proceedings consistent with this opinion. It is so ordered. Cite as: 567 U. S. ____ (2012) 21 Appendix A to opinionCourt Court Opinion of the of the APPENDIXES A Act of Feb. 25, 1871, §4, 16 Stat. 432, 1 U.S. C. §109 Repeal of statutes as affecting existing liabilities “The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liabil- ity incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the en- forcement of such penalty, forfeiture, or liability.” Sentencing Reform Act of 1984, 18 U.S. C. §3553(a)(4) (A)(ii) Imposition of a sentence “FACTORS TO BE CONSIDERED IN IMPOSING A SEN- TENCE. . . . The court, in determining the particu- lar sentence to be imposed, shall consider . . . the kinds of sentence and sentencing range established for . . . the applicable category of offense committed by the applicable category of defendant as set forth in the guidelines . . . that . . . are in effect on the date the defendant is sentenced . . . .” Fair Sentencing Act of 2010, §8, 124 Stat. 2374 Emergency Authority for United States Sentencing Commission “The United States Sentencing Commission shall— “(1) promulgate the guidelines, policy statements, or amendments provided for in this Act as soon as prac- ticable, and in any event not later than 90 days after the date of enactment of this Act, in accordance with the procedure set forth in section 21(a) of the Sen- 22 DORSEY v. UNITED STATES Appendix A to opinionCourt Court Opinion of the of the tencing Act of 1987 (28 U.S. C. [§]994 note), as though the authority under that Act had not expired; and “(2) pursuant to the emergency authority provided under paragraph (1), make such conforming amend- ments to the Federal sentencing guidelines as the Commission determines necessary to achieve con- sistency with other guideline provisions and appli- cable law.” Cite as: 567 U. S. ____ (2012) 23 Appendix B to opinionCourt Court Opinion of the of the B The following chart shows the sentencing scheme that would result for first-time pre-Act crack offenders if the 1986 Drug Act’s old 100-to-1 mandatory minimums re- main in effect after the Fair Sentencing Act’s new 18-to-1 Guidelines became effective. 21 U.S. C. §§841(b)(1)(A)– (C) (2006 ed.); USSG §§2D1.1(c), 5G1.1(b) (Nov. 2011). 1986 Drug Act Minimums and Fair Sentencing Act Guide- lines for Category I Offenders with No Prior Drug Felonies Drug Mandatory Guidelines Sentence Quantity Minimum Range 1g 0 months 10–16 10–16 2g 0 15–21 15–21 3g 0 21–27 21–27 4g 0 21–27 21–27 5g 60 21–27 60 10 g 60 27–33 60 15 g 60 33–41 60 20 g 60 41–51 60 25 g 60 51–63 60–63 35 g 60 63–78 63–78 50 g 120 63–78 120 100 g 120 63–78 120 150 g 120 78–97 120 200 g 120 97–121 120–121 500 g 120 121–151 121–151 1,500 g 120 151–188 151–188 The chart illustrates the disproportionate sentences that such a scheme would create. See supra, at 16–18. For one thing, it would create sentencing “cliffs” at the 1986 Act’s old triggering amounts of 5 grams and 50 grams (where the old minimums would entirely trump the new Guide- lines), resulting in radically different Guidelines sentences 24 DORSEY v. UNITED STATES Appendix B to opinionCourt Court Opinion of the of the for small differences in quantity. For another, because of those “cliffs,” the scheme would create similar Guidelines sentences for offenders who dealt in radically different amounts of crack, e.g., 50 grams versus 500 grams. To be sure, as amicus points out, Congress has provided two mechanisms through which an offender may escape an otherwise applicable mandatory minimum, diminishing this problem for some offenders. First, an offender may escape a minimum by providing substantial assistance in the investigation or prosecution of another person. 18 U.S. C. §3553(e); Fed. Rule Crim. Proc. 35(b); see also 28 U.S. C. §994(n); USSG §5K1.1. Second, under 18 U.S. C. §3553(f), drug offenders who have little or no criminal history and who satisfy other requirements in the provi- sion may obtain “safety valve” relief. See also USSG §5C1.2. And because of these mechanisms a substantial portion of first-time offenders are relieved of application of a manda- tory minimum. However, offenders with a criminal his- tory category of II or higher are ineligible for “safety valve” relief; they escape application of a minimum at a much lower percentage. See 2011 Report 193 (Table 8–8). Crack Offender Categories by Application of 1986 Drug Act Mandatory Min. (FY 2010) Total with Percent with Quantity Quantity Total Percent Carrying Carrying Relieved of Relieved of Offender Total Mandatory Mandatory Mandatory Mandatory Category Offenders Min. Min. Min. Appl. Min. Appl. I 1,055 890 84.4% 525 59.0% II 556 445 80.0% 129 29.0% III 865 703 81.3% 208 29.6% IV 556 469 84.4% 124 26.4% V 380 308 81.1% 89 28.9% VI 1,345 1,086 80.7% 332 30.6% All 4,751 3,905 82.2% 1,407 36.0% Cite as: 567 U. S. ____ (2012) 25 Appendix B to opinionCourt Court Opinion of the of the Yet similar sentencing anomalies would result for re- peat offenders if the 1986 Drug Act’s minimums remain in effect after the Fair Sentencing Act’s Guidelines became effective. Take, for example, Category II offenders. 1986 Drug Act Minimums and Fair Sentencing Act Guide- lines for Category II Offenders with No Prior Drug Felonies Drug Mandatory Guidelines Sentence Quantity Minimum Range 1g 0 months 12–18 12–18 2g 0 18–24 18–24 3g 0 24–30 24–30 4g 0 24–30 24–30 5g 60 24–30 60 10 g 60 30–37 60 15 g 60 37–46 60 20 g 60 46–57 60 25 g 60 57–71 60–71 35 g 60 70–87 70–87 50 g 120 70–87 120 100 g 120 70–87 120 150 g 120 87–108 120 200 g 120 108–135 120–135 500 g 120 135–168 135–168 1,500 g 120 168–210 168–210 As the chart illustrates, for Category II offenders account- able for 5 to 22 grams of crack or for 50 to 195 grams, the 100-to-1 minimums would entirely trump the 18-to-1 Guidelines, producing the same anomalies—dissimilar sen- tences for similar quantities and similar sentences for dis- similar quantities—described above. In contrast, a scheme with the Fair Sentencing Act’s 18- to-1 minimums and new Guidelines produces the propor- tionality in sentencing that Congress intended in enacting 26 DORSEY v. UNITED STATES Appendix B to opinionCourt Court Opinion of the of the the Sentencing Reform Act and the Fair Sentencing Act. Fair Sentencing Act Minimums and Guidelines for Cate- gory II Offenders with No Prior Drug Felonies Drug Mandatory Guidelines Sentence Quantity Minimum Range 1g 0 months 12–18 12–18 2g 0 18–24 18–24 3g 0 24–30 24–30 4g 0 24–30 24–30 5g 0 24–30 24–30 10 g 0 30–37 30–37 15 g 0 37–46 37–46 20 g 0 46–57 46–57 25 g 0 57–71 57–71 35 g 60 70–87 70–87 50 g 60 70–87 70–87 100 g 60 70–87 70–87 150 g 60 87–108 87–108 200 g 60 108–135 108–135 500 g 120 135–168 135–168 1,500 g 120 168–210 168–210 Cite as: 567 U. S. ____ (2012) 1 SCALIA, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ Nos. 11–5683 and 11–5721 _________________ EDWARD DORSEY, SR., PETITIONER 11–5683 v. UNITED STATES COREY A. HILL, PETITIONER 11–5721 v.

Federal statutes impose mandatory minimum prison sentences upon those convicted of federal drug crimes. These statutes typically base the length of a minimum prison term upon the kind and amount of the drug in- volved. Until 2010, the relevant statute imposed upon an offender who dealt in powder cocaine the same sentence it imposed upon an offender who dealt in one one-hundredth that amount of crack cocaine. It imposed, for example, the same 5-year minimum term upon (1) an offender convicted of possessing with intent to distribute 500 grams of pow- der cocaine as upon (2) an offender convicted of possessing with intent to distribute 5 grams of crack. In 2010, Congress enacted a new statute reducing the crack-to-powder cocaine disparity from 100-to-1 to 18-to-1. Fair Sentencing Act, The new statute took 2 DORSEY v. UNITED STATES Opinion of the Court effect on August 3, 2010. The question here is whether the Act’s more lenient penalty provisions apply to offend- ers who committed a crack cocaine crime before August 3, 2010, but were not sentenced until after August 3. We hold that the new, more lenient mandatory minimum provisions do apply to those pre-Act offenders. I The underlying question before us is one of congres- sional intent as revealed in the Fair Sentencing Act’s lan- guage, structure, and basic objectives. Did Congress intend the Act’s more lenient penalties to apply to pre-Act offenders sentenced after the Act took effect? We recognize that, because of important background principles of interpretation, we must assume that Con- gress did not intend those penalties to apply unless it clearly indicated to the contrary. See infra, at 10–13. But we find that clear indication here. We rest our conclu- sion primarily upon the fact that a contrary determination would seriously undermine basic Federal Sentencing Guidelines objectives such as uniformity and proportional- ity in sentencing. Indeed, seen from that perspective, a contrary determination would (in respect to relevant groups of drug offenders) produce sentences less uniform and more disproportionate than if Congress had not en- acted the Fair Sentencing Act at all. See infra, at 14–18. Because our conclusion rests upon an analysis of the Guidelines-based sentencing system Congress has estab- lished, we describe that system at the outset and include an explanation of how the Guidelines interact with federal statutes setting specific terms of imprisonment. A The Guidelines originate in the Sentencing Reform Act of 1984, That statute created a federal Sentencing Commission instructed to write guidelines that Cite as: 567 U. S. (2012) 3 Opinion of the Court judges would use to determine sentences imposed upon offenders convicted of committing federal crimes. 28 U.S. C. 994. Congress thereby sought to increase transparency, uniformity, and proportionality in sentenc- ing. United States Sentencing Commission (USSC or Commission), Guidelines Manual p. 2 (USSG); see 28 U.S. C. 994(f). The Sentencing Reform Act directed the Commission to create in the Guidelines categories of offense behavior (e.g., “ ‘bank robbery/committed with a gun/$2500 taken’ ”) and offender characteristics (e.g., “one prior conviction”). USSG at 1; see 28 U.S. C. A sen- tencing judge determines a Guidelines range by (1) finding the applicable offense level and offender category and then (2) consulting a table that lists proportionate sentenc- ing ranges (e.g., 18 to 24 months of imprisonment) at the intersections of rows (marking offense levels) and columns (marking offender categories). USSG ch. 5, pt. A, Sen- tencing Table, 7B1.4; see also at 11. The Guidelines, after telling the judge how to determine the applicable offense level and offender category, instruct the judge to apply the intersection’s range in an ordinary case, but they leave the judge free to depart from that range in an unusual case. See 18 U.S. C. USSG § at 1–2, 1A1.4(b), at 6–7. This Court has held that the Guidelines are now advisory. United States v. Booker, 543 U.S. 220, 245, 264 ; see The Guidelines determine most drug-crime offense lev- els in a special way. They set a Drug Quantity Table (or Table) that lists amounts of various drugs and associates different amounts with different “Base Offense Levels” (to which a judge may add or subtract levels de- pending upon the “specific” characteristics of the offender’s behavior). See USSG The Table, for example, associates 400 to 499 grams of powder cocaine with a base 4 DORSEY v. UNITED STATES Opinion of the Court offense level of 24, a level that would mean for a first-time offender a prison term of 51 to 63 months. In 1986, Congress enacted a more specific, drug-related sentencing statute, the Anti-Drug Abuse Act (1986 Drug Act), That statute sets mandatory minimum penalties of 5 and 10 years applicable to a drug offender depending primarily upon the kind and amount of drugs involved in the offense. See 21 U.S. C. (A)–(C) (2006 ed. and Supp. IV). The minimum applicable to an offender convicted of possessing with intent to dis- tribute 500 grams or more of powder cocaine is 5 years, and for 5,000 grams or more of powder the minimum is 10 years. (A)(ii), (B)(ii). The 1986 Drug Act, however, treated crack cocaine crimes as far more serious. It applied its 5-year minimum to an offender convicted of possessing with intent to distribute only 5 grams of crack (as compared to 500 grams of powder) and its 10-year minimum to one convicted of possessing with intent to distribute only 50 grams of crack (as compared to 5,000 grams of powder), thus producing a 100-to-1 crack-to- powder ratio. (A)(iii), (B)(iii) (2006 ed.). The 1986 Drug Act, like other federal sentencing stat- utes, interacts with the Guidelines in an important way. Like other sentencing statutes, it trumps the Guidelines. Thus, ordinarily no matter what the Guidelines provide, a judge cannot sentence an offender to a sentence beyond the maximum contained in the federal statute setting the crime of conviction. Similarly, ordinarily no matter what range the Guidelines set a sentencing judge must sentence an offender to at least the minimum prison term set in a statutory mandatory minimum. See 28 U.S. C. (b)(1); USSG Neal v. United States, Not surprisingly, the Sentencing Commission incorpo- rated the 1986 Drug Act’s mandatory minimums into the first version of the Guidelines themselves. Cite as: 567 U. S. (2012) 5 Opinion of the Court 6–97. It did so by setting a base offense level for a first-time drug offender that corresponded to the lowest Guidelines range above the applicable mandatory minimum. USSC, Report to the Congress: Mandatory Minimum Penalties in the Federal Criminal Justice Sys- tem 53–54 ( Report). Thus, the first Guidelines Drug Quantity Table associated 500 grams of powder cocaine with an offense level of 26, which for a first-time offender meant a sentencing range of 63 to 78 months (just above the 5-year minimum), and it associated 5,000 grams of powder cocaine with an offense level of 32, which for a first-time offender meant a sentencing range of 121 to 151 months (just above the 10-year minimum). USSG (Oct. 1987). Further reflecting the 1986 Drug Act’s 100-to-1 crack-to-powder ratio, the Table asso- ciated an offense level of 26 with 5 grams of crack and an offense level of 32 with 50 grams of crack. In addition, the Drug Quantity Table set offense levels for small drug amounts that did not trigger the 1986 Drug Act’s mandatory minimums so that the resulting Guide- lines sentences would remain proportionate to the sen- tences for amounts that did trigger these minimums. Report 54. Thus, the Table associated 400 grams of pow- der cocaine (an amount that fell just below the amount triggering the 1986 Drug Act’s 5-year minimum) with an offense level of 24, which for a first-time offender meant a sentencing range of 51 to 63 months (the range just below the 5-year minimum). USSG (Oct. 1987). Follow- ing the 100-to-1 crack-to-powder ratio, the Table associated four grams of crack (an amount that also fell just below the amount triggering the 1986 Drug Act’s 5-year mini- mum) with an offense level of 24. The Commission did this not because it necessarily thought that those levels were most in keeping with past sentencing practice or would independently have reflected a fair set of sentences, but rather because the Commission 6 DORSEY v. UNITED STATES Opinion of the Court believed that doing so was the best way to keep similar drug-trafficking sentences proportional, thereby satisfying the Sentencing Reform Act’s basic “proportionality” objec- tive. See ; USSG ; Report 53–54, 349, and n. 845. For this rea- son, the Commission derived the Drug Quantity Table’s entire set of crack and powder cocaine offense levels by using the 1986 Drug Act’s two (5- and 10-year) minimum amounts as reference points and then extrapolating from those two amounts upward and downward to set propor- tional offense levels for other drug amounts. B During the next two decades, the Commission and others in the law enforcement community strongly criti- cized Congress’ decision to set the crack-to-powder manda- tory minimum ratio at 100-to-1. The Commission issued four separate reports telling Congress that the ratio was too high and unjustified because, for example, research showed the relative harm between crack and powder cocaine less severe than 100-to-1, because sentences em- bodying that ratio could not achieve the Sentencing Re- form Act’s “uniformity” goal of treating like offenders alike, because they could not achieve the “proportionality” goal of treating different offenders (e.g., major drug traf- fickers and low-level dealers) differently, and because the public had come to understand sentences embodying the 100-to-1 ratio as reflecting unjustified race-based differ- ences. 7–98; see, e.g., USSC, Special Report to the Congress: Cocaine and Federal Sen- tencing Policy 197–198 (Feb. 1995) (1995 Report); USSC, Special Report to Congress: Cocaine and Federal Sentenc- ing Policy 8 (Apr. 1997) (1997 Report); USSC, Report to Congress: Cocaine and Federal Sentencing Policy 103 (May 2002) (2002 Report); USSC, Report to Congress: Cocaine and Federal Sentencing Policy 8 (2007 Cite as: 567 U. S. (2012) 7 Opinion of the Court Report). The Commission also asked Congress for new legislation embodying a lower crack-to-powder ratio. 1995 Report 198–200; 1997 Report 9–10; 2002 Report 103– 107; 2007 Report 6–9. And the Commission recommended that the legislation “include” an “emergency amendment” allowing “the Commission to incorporate the statutory changes” in the Guidelines while “minimiz[ing] the lag between any statutory and guideline modifications for cocaine offenders.” In 2010, Congress accepted the Commission’s recom- mendations, see 2002 Report 104; 2007 Report 8–9, and n. 26, and enacted the Fair Sentencing Act into law. The Act increased the drug amounts triggering mandatory minimums for crack trafficking offenses from 5 grams to 28 grams in respect to the 5-year minimum and from 50 grams to 280 grams in respect to the 10-year minimum (while leaving powder at 500 grams and 5,000 grams respectively). The change had the effect of lowering the 100-to-1 crack-to-powder ratio to 18- to-1. (The Act also eliminated the 5-year mandatory minimum for simple possession of crack. 124 Stat. 2372.) Further, the Fair Sentencing Act instructed the Com- mission to “make such conforming amendments to the Federal sentencing guidelines as the Commission deter- mines necessary to achieve consistency with other guide- line provisions and applicable law.” And it directed the Commission to “promulgate the guide- lines, policy statements, or amendments provided for in this Act as soon as practicable, and in any event not later than 90 days” after the new Act took The Fair Sentencing Act took effect on August 3, 2010. The Commission promulgated conforming emergency Guidelines amendments that became effective on Novem- ber 1, 2010. (2010). A permanent version of those Guidelines amendments took effect on 8 DORSEY v. UNITED STATES Opinion of the Court November 1, See 76 C With this background in mind, we turn to the relevant facts of the cases before us. Corey Hill, one of the peti- tioners, unlawfully sold 53 grams of crack in March 2007, before the Fair Sentencing Act became law. App. in No. 11–5721, pp. 6, 83 (hereinafter Hill App.). Under the 1986 Drug Act, an offender who sold 53 grams of crack was subject to a 10-year mandatory minimum. 21 U.S. C. (2006 ed.). Hill was not sentenced, how- ever, until December 2010, after the Fair Sentencing Act became law and after the new Guidelines amendments had become effective. Hill App. 83–94. Under the Fair Sentencing Act, an offender who sold 53 grams of crack was subject to a 5-year, not a 10-year, minimum. (2006 ed., Supp. IV). The sentencing judge stated that, if he thought that the Fair Sentencing Act applied, he would have sentenced Hill to that Act’s 5- year minimum. But he concluded that the Fair Sentencing Act’s lower minimums apply only to those who committed a drug crime after August 3, 2010—the Act’s effective date. That is to say, he concluded that the new Act’s more lenient sentences did not apply to those who committed a crime before August 3, even if they were sentenced after that date. Hence, the judge sen- tenced Hill to 10 years of imprisonment. The Court of Appeals for the Seventh Circuit affirmed. 417 Fed. Appx. 560 The second petitioner, Edward Dorsey (who had previ- ously been convicted of a drug felony), unlawfully sold 5.5 grams of crack in August 2008, before the Fair Sentencing Act took App. in No. 5683, pp. 9, 48–49, 57–58 (hereinafter Dorsey App.). Under the 1986 Drug Act, an offender such as Dorsey with a prior drug felony who sold 5.5 grams of crack was subject to a 10-year minimum. Cite as: 567 U. S. (2012) 9 Opinion of the Court (2006 ed.). Dorsey was not sentenced, however, until September 2010, after the new Fair Sen- tencing Act took at 84–95. Under the Fair Sentencing Act, such an offender who sold 5.5 grams of crack was not subject to a mandatory minimum at all, for 5.5 grams is less than the 28 grams that triggers the new Act’s mandatory minimum provisions. (2006 ed., Supp. IV). Dorsey asked the judge to apply the Fair Sentencing Act’s more lenient statutory penalties. at 54–55. Moreover, as of Dorsey’s sentencing in September 2010, the unrevised Guidelines (reflecting the 1986 Drug Act’s old minimums) were still in The Commission had not yet finished revising the Guidelines to reflect the new, lower statutory minimums. And the basic sentencing statute, the Sentencing Reform Act, provides that a judge shall apply the Guidelines that “are in effect on the date the defendant is ” 18 U.S. C. The sentencing judge, however, had the legal authority not to apply the Guidelines at all (for they are advisory). But he also knew that he could not ignore a minimum sentence contained in the applicable statute. Dorsey App. 67–68. The judge noted that, even though he was sentenc- ing Dorsey after the effective date of the Fair Sentencing Act, Dorsey had committed the underlying crime prior to that date. –70. And he concluded that the 1986 Drug Act’s old minimums, not the new Fair Sentencing Act, applied in those circumstances. He consequently sentenced Dorsey to the 1986 Drug Act’s 10-year man- datory minimum term. The Court of Appeals for the Seventh Circuit affirmed, United and denied rehearing en banc, 646 F.3d 429 (per curiam); see also United States v. The Courts of Appeals have come to different conclu- sions as to whether the Fair Sentencing Act’s more lenient 10 DORSEY v. UNITED STATES Opinion of the Court mandatory minimums apply to offenders whose unlawful conduct took place before, but whose sentencing took place after, the date that Act took effect, namely, August 3, 2010. Compare United 42–44 (Act applies), and United States v. Dixon, with 635 F. 3d, at 339–340 (Act does not apply), United States v. 0 and United (per curiam) In light of that disagreement, we granted Hill’s and Dorsey’s petitions for certiorari. Since petitioners and the Government both take the position that the Fair Sentencing Act’s new minimums do apply in these circumstances, we appointed as amicus curiae Miguel Estrada to argue the contrary position. He has ably discharged his responsibilities. II A The timing issue before us is difficult in part because relevant language in different statutes argues in opposite directions. See Appendix A, infra. On the one hand, a federal saving statute, Act of Feb. 25, 1871 (1871 Act), phrased in general terms, provides that a new criminal statute that “repeal[s]” an older criminal statute shall not change the penalties “incurred” under that older statute “unless the repealing Act shall so ex- pressly provide.” 1 U.S. C. Case law makes clear that the word “repeal” applies when a new statute simply diminishes the penalties that the older statute set See ; see also United Case law also makes clear that penalties are “incurred” under the older statute when an offender becomes subject to them, i.e., commits the underlying conduct that makes the offender liable. See United States v. Reisinger, 128 U.S. Cite as: 567 U. S. (2012) 11 Opinion of the Court 398, 401 (1888); Great Northern R. On the other hand, the Sentencing Reform Act says that, regardless of when the offender’s conduct occurs, the applicable Guidelines are the ones “in effect on the date the defendant is ” 18 U.S. C. And the Fair Sentencing Act requires the Commission to change the Guidelines in the wake of the Act’s new minimums, making them consistent with “other guideline provisions and applicable law.” Courts that have held that they must apply the old, higher 1986 Drug Act minimums to all pre-Act offenders, including those sentenced after the Fair Sentencing Act took effect, have emphasized that the 1871 Act requires that result unless the Fair Sentencing Act either expressly says or at least by fair implication implies the contrary. See –340; 06–908; at 214–; see also at 446–448 (opinion of Easterbrook, J.). Courts that have concluded that the Fair Sentencing Act’s more lenient penalties apply have found in that Act, together with the Sentencing Reform Act and other related circumstances, indicia of a clear congressional intent to apply the new Act’s minimums. See at 42–44; Dixon, at 199–; see also – 457 (Williams, J., dissenting from denial of rehearing en banc); at 461–463 (Posner, J., dissenting from denial of rehearing en banc). We too take the latter view. Six considerations, taken together, convince us that Congress intended the Fair Sentencing Act’s more lenient penalties to apply to those offenders whose crimes preceded August 3, 2010, but who are sentenced after that date. First, the 1871 saving statute permits Congress to apply a new Act’s more lenient penalties to pre-Act offenders without expressly saying so in the new Act. It is true that the 1871 Act uses the words “expressly provide.” 1 12 DORSEY v. UNITED STATES Opinion of the Court U. S. C. But the Court has long recognized that this saving statute creates what is in effect a less demanding interpretive requirement. That is because statutes en- acted by one Congress cannot bind a later Congress, which remains free to repeal the earlier statute, to exempt the current statute from the earlier statute, to modify the earlier statute, or to apply the earlier statute but as modi- fied. See, e.g., ; And Congress remains free to express any such intention either expressly or by implication as it chooses. Thus, the Court has said that the 1871 Act “cannot justify a disregard of the will of Congress as manifested either expressly or by necessary implication in a subse- quent enactment.” Great Northern R. (emphasis added). And in a comparable context the Court has emphasized that the Administrative Procedure Act’s use of the word “expressly” does not require Congress to use any “magical passwords” to exempt a later statute from the provision. 310 (1955). Without requiring an “express” statement, the Court has described the necessary indicia of congressional intent by the terms “necessary implication,” “clear impli- cation,” and “fair implication,” phrases it has used inter- changeably. Great Northern R. 466; (10); Marrero, One Member of the Court has said we should determine whether “the plain import of a later statute directly conflicts with an earlier statute,” and, if so, “the later enactment governs, regardless of its compli- ance with any earlier-enacted requirement of an express reference or other ‘magical password.’ ” Hence, the Court has treated the 1871 Act as setting an important background principle of interpretation. The Court has also assumed Congress is well aware of the Cite as: 567 U. S. (2012) 13 Opinion of the Court background principle when it enacts new criminal stat- utes. E.g., Great Northern R. ; Hertz, ; cf. And the prin- ciple requires courts, before interpreting a new criminal statute to apply its new penalties to a set of pre-Act of- fenders, to assure themselves that ordinary interpretive considerations point clearly in that direction. Words such as “plain import,” “fair implication,” or the like reflect the need for that assurance. And it is that assurance, which we shall assume is conveyed by the phrases “plain import” or “fair implication,” that we must look for here. Second, the Sentencing Reform Act sets a special and different background principle. That statute says that when “determining the particular sentence to be imposed” in an initial sentencing, the sentencing court “shall con- sider,” among other things, the “sentencing range” estab- lished by the Guidelines that are “in effect on the date the defendant is ” 18 U.S. C. (emphasis added). Although the Constitution’s Ex Post Facto Clause, Art. I, cl. 3, prohibits applying a new Act’s higher penalties to pre-Act conduct, it does not pro- hibit applying lower penalties. See Calder v. Bull, 3 Dall. 386, 390–3 (1798); Collins v. Youngblood, 497 U.S. 37, 41–44 (1990). The Sentencing Commission has conse- quently instructed sentencing judges to “use the Guide- lines Manual in effect on the date that the defendant is sentenced,” regardless of when the defendant committed the offense, unless doing so “would violate the ex post facto clause.” USSG And therefore when the Com- mission adopts new, lower Guidelines amendments, those amendments become effective to offenders who committed an offense prior to the adoption of the new amendments but are sentenced thereafter. Just as we assume Congress was aware of the 1871 Act’s background norm, so we assume that Congress was aware of this different back- ground sentencing principle. 14 DORSEY v. UNITED STATES Opinion of the Court Third, language in the Fair Sentencing Act implies that Congress intended to follow the Sentencing Reform Act background principle here. A section of the Fair Sentenc- ing Act entitled “Emergency Authority for United States Sentencing Commission” requires the Commission to prom- ulgate “as soon as practicable” (and not later than 90 days after August 3, 2010) “conforming amendments” to the Guidelines that “achieve consistency with other guide- line provisions and applicable law.” Read most naturally, “applicable law” refers to the law as changed by the Fair Sentencing Act, including the provi- sion reducing the crack mandatory minimums. As the Commission understood this provi- sion, achieving consistency with “other guideline provi- sions” means reducing the base offense levels for all crack amounts proportionally (using the new 18-to-1 ratio), in- cluding the offense levels governing small amounts of crack that did not fall within the scope of the mandatory minimum provisions. 75 Fed. Reg. 661. And consis- tency with “other guideline provisions” and with prior Com- mission practice would require application of the new Guidelines amendments to offenders who committed their offense prior to the new amendments’ effective date but were sentenced thereafter. See USSG e.g., USSG App. C, amdts. 706, 711 ; see also Memorandum from G. Schmitt, L. Reed, & K. Cohen, USSC, to Chair Hinojosa et al., Subject: Analy- sis of the Impact of the Crack Cocaine Amendment if Made Retroactive 23 Cf. USSG App. C, amdt. 571 (amendment increasing restitution, which may present ex post facto and one-book-rule concerns, would apply only to defendants sentenced for post-amendment offenses), discussed post, at 5 (SCALIA, J., dissenting). Fourth, applying the 1986 Drug Act’s old mandatory minimums to the post-August 3 sentencing of pre-August 3 offenders would create disparities of a kind that Congress Cite as: 567 U. S. (2012) 15 Opinion of the Court enacted the Sentencing Reform Act and the Fair Sentenc- ing Act to prevent. Two individuals with the same number of prior offenses who each engaged in the same criminal conduct involving the same amount of crack and were sentenced at the same time would receive radically differ- ent sentences. For example, a first-time post-Act offender with five grams of crack, subject to a Guidelines range of 21 to 27 months, could receive two years of imprisonment, while an otherwise identical pre-Act offender would have to receive the 5-year mandatory minimum. Compare USSG (c) with 21 U.S. C. (2006 ed.). A first-time post-Act 50-gram offender would be subject to a Guidelines range of less than six years of imprisonment, while his otherwise identical pre-Act coun- terpart would have to receive the 10-year mandatory minimum. Compare USSG (c) with 21 U.S. C. (2006 ed.). Moreover, unlike many prechange/postchange discrep- ancies, the imposition of these disparate sentences in- volves roughly contemporaneous sentencing, i.e., the same time, the same place, and even the same judge, thereby highlighting a kind of unfairness that modern sentenc- ing statutes typically seek to combat. See, e.g., 28 U.S. C. §9(b)(1)(B) (purposes of Guidelines-based sentencing include “avoiding unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar criminal conduct”); S. Rep. No. 98– 223, p. 74 (1983) (explaining rationale for using same, current Guidelines for all roughly contemporaneous sen- tencings). Further, it would involve imposing upon the pre-Act offender a pre-Act sentence at a time after Con- gress had specifically found in the Fair Sentencing Act that such a sentence was unfairly long. Finally, one cannot treat such problems as if they were minor ones. Given the 5-year statute of limitations for federal drug offenses, the 11-month median time between 16 DORSEY v. UNITED STATES Opinion of the Court indictment and sentencing for those offenses, and the approximately 5,000 federal crack offenders convicted each year, many pre-Act offenders were not (and will not be) sentenced until after August 3, 2010, when the new, more lenient mandatory minimums took See 18 U.S. C. Administrative Office of United States Courts, Judicial Business of the United States Courts, p. 272 (2010) (Table D–10); Report 1. Fifth, not to apply the Fair Sentencing Act would do more than preserve a disproportionate status quo; it would make matters worse. It would create new anomalies—new sets of disproportionate sentences—not previously present. That is because sentencing courts must apply new Guide- lines (consistent with the Fair Sentencing Act’s new min- imums) to pre-Act offenders, see –14, and the 1986 Drug Act’s old minimums would trump those new Guidelines for some pre-Act offenders but not for all of them—say, pre-Act offenders who possessed crack in small amounts not directly the subject of mandatory minimums. Consider, for example, a first-time offender convicted of possessing with intent to distribute four grams of crack. No mandatory sentence, under the 1986 Drug Act or the Fair Sentencing Act, applies to an offender possessing so small an amount. Yet under the old law, the Commission, charged with creating proportionate sentences, had created a Guidelines range of 41 to 51 months for such an of- fender, a sentence proportional to the 60 months that the 1986 Drug Act required for one who trafficked five grams of crack. See at 5–6; USSG (c) (Nov. 2009). The Fair Sentencing Act, however, requires the Com- mission to write new Guidelines consistent with the new law. The Commission therefore wrote new Guidelines that provide a sentencing range of 21 to 27 months—about two years—for the first-time, 4-gram offender. See USSG (c) And the Sentencing Reform Act Cite as: 567 U. S. (2012) 17 Opinion of the Court requires application of those new Guidelines to all of- fenders (including pre-Act offenders) who are sentenced once those new Guidelines take See 18 U.S. C. Those new Guidelines must take effect and apply to a pre-Act 4-gram offender, for such an of- fender was never subject to a trumping statutory 1986 Drug Act mandatory minimum. However, unless the Fair Sentencing Act’s new, more lenient mandatory mini- mums apply to pre-Act offenders, an otherwise identical of- fender who possessed five grams would have to receive a 5-year sentence. See 21 U.S. C. (2006 ed., Supp. IV). For example, imagine that on July 1, 2010, both Smith and Jones commit a crack crime identical but for the fact that Smith possesses with intent to distribute four grams of crack and Jones five grams. Both are sentenced on December 1, 2010, after the Fair Sentencing Act and the new Guidelines take Smith’s Guidelines sentence would be two years, but unless the Fair Sentencing Act applies, Jones’s sentence would have to be five years. The difference of one gram would make a difference, not of only one year as it did before enactment of the Fair Sentencing Act, but instead of three years. Passage of the new Act, designed to have brought about fairer sentences, would here have created a new disparate sentencing “cliff.” Nor can one say that the new Act would produce dispro- portionalities like this in only a few cases. In fiscal year 2010, 17.8 percent of all crack offenders were convicted of- offenses not subject to the 1986 Drug Act’s minimums. Report 1. And since those minimums apply only to some drug offenders and they apply in different ways, one can find many similar examples of disproportionalities. See Appendix B, infra. Thus, application of the 1986 Drug Act minimums to pre-Act offenders sentenced after the new Guidelines take effect would produce a crazy quilt of sentences, at odds with Congress’ basic efforts to achieve 18 DORSEY v. UNITED STATES Opinion of the Court more uniform, more proportionate sentences. Congress, when enacting the Fair Sentencing Act, could not have intended any such result. Sixth, we have found no strong countervailing considera- tion. Amicus and the dissent argue that one might read much of the statutory language we have discussed as embodying exceptions, permitting the old 1986 Drug Act minimums to apply to pre-Act offenders sentenced after August 3, 2010, when the Fair Sentencing Act took The words “applicable law” in the new Act, for example, could, linguistically speaking, encompass the 1986 Drug Act minimums applied to those sentenced after August 3. Post, at 4–6 (SCALIA, J., dissenting). Moreover, Congress could have insisted that the Commission write new Guide- lines with special speed to assure itself that new, post- August 3 offenders—but not old, pre-August 3 offenders— would receive the benefit of the new Act. Post, at 6–8. Further, amicus and the dissent note that to apply the new Act’s minimums to the old, pre-August 3 offenders will create a new disparity—one between pre-Act offenders sentenced before August 3 and those sentenced after that date. Post, We do not believe that these arguments make a critical difference. Even if the relevant statutory language can be read as amicus and the dissent suggest and even if Congress might have wanted Guidelines written speedily simply in order to apply them quickly to new offenders, there is scant indication that this is what Congress did mean by the language in question nor that such was in fact Congress’ motivation. The considerations we have set –17 and this page, strongly suggest the contrary. We also recognize that application of the new minimums to pre-Act offenders sentenced after August 3 will create a new set of disparities. But those disparities, reflecting a line-drawing effort, will exist whenever Congress enacts a Cite as: 567 U. S. (2012) 19 Opinion of the Court new law changing sentences (unless Congress intends re- opening sentencing proceedings concluded prior to a new law’s effective date). We have explained how in federal sentencing the ordinary practice is to apply new penalties to defendants not yet sentenced, while withholding that change from defendants already ; compare 18 U.S. C. with And we have explained how, here, continued application of the old 1986 Drug Act minimums to those pre-Act offend- ers sentenced after August 3 would make matters worse. at 16–18. We consequently conclude that this particular new disparity (between those pre-Act offenders already sentenced and those not yet sentenced as of August 3) cannot make a critical difference. For these reasons considered as a whole, we conclude that Congress intended the Fair Sentencing Act’s new, lower mandatory minimums to apply to the post-Act sentencing of pre-Act offenders. That is the Act’s “plain import” or “fair implication.” B We add one final point. Several arguments we have discussed involve the language of statutes that determine how new Guidelines take –14. What about those who committed an offense prior to August 3 and were sentenced after August 3 but before November 1, 2010—a period after the new Act’s effective date but before the new Guidelines first took effect? Do the Fair Sentenc- ing Act’s new mandatory minimums apply to them? In our view, the new Act’s lower minimums apply to them as well. Our reason is that the statute simply in- structs the Commission to promulgate new Guidelines “as soon as practicable” (but no later than 90 days after the Act took effect). As far as Congress was concerned, the Commission might have (having prepared new Guidelines in advance) promulgated those 20 DORSEY v. UNITED STATES Opinion of the Court Guidelines within a few days—perhaps on August 3 itself. At the same time, the Commission possesses ample au- thority to permit appropriate adjustments to be made in the Guidelines sentences of those sentenced after August 3 but prior to the new Guidelines promulgation. See 28 U.S. C. (power to make Guidelines reductions retroactive); –41334 (amended 18-to-1 Guidelines made retroactive). In any event, courts, treating the Guidelines as advisory, possess au- thority to sentence in accordance with the new minimums. For these reasons, if the Fair Sentencing Act’s new minimums apply to all of those sentenced after August 3, 2010 (even if the new Guidelines were not yet ready), it is possible to foresee a reasonably smooth transition. On the other hand, it is difficult to foresee such a transition if the new Act’s application is keyed to a later date, thereby leaving the courts unable to take the new Act fully into account, particularly when that circumstance might create additional disparities and uncertainties that courts and the Commission may be helpless to correct. We have no reason to believe Congress would have wanted to impose an unforeseeable, potentially complex application date. * * * We vacate the Court of Appeals’ judgments and remand these cases for further proceedings consistent with this opinion. It is so ordered. Cite as: 567 U. S. (2012) 21 Appendix A to opinionCourt Court Opinion of the of the APPENDIXES A Act of Feb. 25, 1871, 1 U.S. C. Repeal of statutes as affecting existing liabilities “The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liabil- ity incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the en- forcement of such penalty, forfeiture, or liability.” Sentencing Reform Act of 1984, 18 U.S. C. (A)(ii) Imposition of a sentence “FACTORS TO BE CONSIDERED IN IMPOSING A SEN- TENCE. The court, in determining the particu- lar sentence to be imposed, shall consider the kinds of sentence and sentencing range established for the applicable category of offense committed by the applicable category of defendant as set in the guidelines that are in effect on the date the defendant is sentenced” Fair Sentencing Act of 2010, Emergency Authority for United States Sentencing Commission “The United States Sentencing Commission shall— “(1) promulgate the guidelines, policy statements, or amendments provided for in this Act as soon as prac- ticable, and in any event not later than 90 days after the date of enactment of this Act, in accordance with the procedure set in section 21(a) of the Sen- 22 DORSEY v. UNITED STATES Appendix A to opinionCourt Court Opinion of the of the tencing Act of 1987 (28 U.S. C. note), as though the authority under that Act had not expired; and “(2) pursuant to the emergency authority provided under paragraph (1), make such conforming amend- ments to the Federal sentencing guidelines as the Commission determines necessary to achieve con- sistency with other guideline provisions and appli- cable law.” Cite as: 567 U. S. (2012) 23 Appendix B to opinionCourt Court Opinion of the of the B The following chart shows the sentencing scheme that would result for first-time pre-Act crack offenders if the 1986 Drug Act’s old 100-to-1 mandatory minimums re- main in effect after the Fair Sentencing Act’s new 18-to-1 Guidelines became effective. 21 U.S. C. (A)– (C) (2006 ed.); USSG §(c), 5G1.1(b) 1986 Drug Act Minimums and Fair Sentencing Act Guide- lines for Category I Offenders with No Prior Drug Felonies Drug Mandatory Guidelines Sentence Quantity Minimum Range 1g 0 months 10–16 10–16 2g 0 15–21 15–21 3g 0 21–27 21–27 4g 0 21–27 21–27 5g 60 21–27 60 10 g 60 27–33 60 15 g 60 33–41 60 20 g 60 41–51 60 25 g 60 51–63 60–63 35 g 60 63–78 63–78 50 g 120 63–78 120 100 g 120 63–78 120 150 g 120 78–97 120 200 g 120 97–121 120–121 500 g 120 121–151 121–151 1,500 g 120 151–188 151–188 The chart illustrates the disproportionate sentences that such a scheme would create. See at 16–18. For one thing, it would create sentencing “cliffs” at the 1986 Act’s old triggering amounts of 5 grams and 50 grams (where the old minimums would entirely trump the new Guide- lines), resulting in radically different Guidelines sentences 24 DORSEY v. UNITED STATES Appendix B to opinionCourt Court Opinion of the of the for small differences in quantity. For another, because of those “cliffs,” the scheme would create similar Guidelines sentences for offenders who dealt in radically different amounts of crack, e.g., 50 grams versus 500 grams. To be sure, as amicus points out, Congress has provided two mechanisms through which an offender may escape an otherwise applicable mandatory minimum, diminishing this problem for some offenders. First, an offender may escape a minimum by providing substantial assistance in the investigation or prosecution of another person. 18 U.S. C. Fed. Rule Crim. Proc. 35(b); see also 28 U.S. C. USSG Second, under 18 U.S. C. drug offenders who have little or no criminal history and who satisfy other requirements in the provi- sion may obtain “safety valve” relief. See also USSG And because of these mechanisms a substantial portion of first-time offenders are relieved of application of a manda- tory minimum. However, offenders with a criminal his- tory category of II or higher are ineligible for “safety valve” relief; they escape application of a minimum at a much lower percentage. See Report 193 (Table 8–8). Crack Offender Categories by Application of 1986 Drug Act Mandatory Min. (FY 2010) Total with Percent with Quantity Quantity Total Percent Carrying Carrying Relieved of Relieved of Offender Total Mandatory Mandatory Mandatory Mandatory Category Offenders Min. Min. Min. Appl. Min. Appl. I 1,055 890 84.4% 525 59.0% II 556 445 80.0% 129 29.0% III 865 703 81.3% 208 29.6% IV 556 469 84.4% 124 26.4% V 380 308 81.1% 89 28.9% VI 1,345 1,086 80.7% 332 30.6% All 4,751 3,905 82.2% 1,407 36.0% Cite as: 567 U. S. (2012) 25 Appendix B to opinionCourt Court Opinion of the of the Yet similar sentencing anomalies would result for re- peat offenders if the 1986 Drug Act’s minimums remain in effect after the Fair Sentencing Act’s Guidelines became effective. Take, for example, Category II offenders. 1986 Drug Act Minimums and Fair Sentencing Act Guide- lines for Category II Offenders with No Prior Drug Felonies Drug Mandatory Guidelines Sentence Quantity Minimum Range 1g 0 months 12–18 12–18 2g 0 18–24 18–24 3g 0 24–30 24–30 4g 0 24–30 24–30 5g 60 24–30 60 10 g 60 30–37 60 15 g 60 37–46 60 20 g 60 46–57 60 25 g 60 57–71 60–71 35 g 60 70–87 70–87 50 g 120 70–87 120 100 g 120 70–87 120 150 g 120 87–108 120 200 g 120 108– 120– 500 g 120 –168 –168 1,500 g 120 168–210 168–210 As the chart illustrates, for Category II offenders account- able for 5 to 22 grams of crack or for 50 to 195 grams, the 100-to-1 minimums would entirely trump the 18-to-1 Guidelines, producing the same anomalies—dissimilar sen- tences for similar quantities and similar sentences for dis- similar quantities—described above. In contrast, a scheme with the Fair Sentencing Act’s 18- to-1 minimums and new Guidelines produces the propor- tionality in sentencing that Congress intended in enacting 26 DORSEY v. UNITED STATES Appendix B to opinionCourt Court Opinion of the of the the Sentencing Reform Act and the Fair Sentencing Act. Fair Sentencing Act Minimums and Guidelines for Cate- gory II Offenders with No Prior Drug Felonies Drug Mandatory Guidelines Sentence Quantity Minimum Range 1g 0 months 12–18 12–18 2g 0 18–24 18–24 3g 0 24–30 24–30 4g 0 24–30 24–30 5g 0 24–30 24–30 10 g 0 30–37 30–37 15 g 0 37–46 37–46 20 g 0 46–57 46–57 25 g 0 57–71 57–71 35 g 60 70–87 70–87 50 g 60 70–87 70–87 100 g 60 70–87 70–87 150 g 60 87–108 87–108 200 g 60 108– 108– 500 g 120 –168 –168 1,500 g 120 168–210 168–210 Cite as: 567 U. S. (2012) 1 SCALIA, J., dissenting SUPREME COURT OF THE UNITED STATES Nos. 11–5683 and 11–5721 EDWARD DORSEY, SR., PETITIONER 11–5683 v. UNITED STATES COREY A. HILL, PETITIONER 11–5721 v.

Justice Scalia

dissenting

Dorsey v. United States

2012-06-21

https://www.courtlistener.com/opinion/802791/dorsey-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/802791/

2011-071

In the Fair Sentencing Act of 2010, 124 Stat. 2372, Congress increased the threshold quantities of crack co- caine required to trigger the 5- and 10-year mandatory minimum penalties associated with offenses involving the manufacture, distribution, or dispensation of the drug, and eliminated the 5-year mandatory minimum previously associated with simple possession of it. The Act is silent as to whether these changes apply to defendants who committed their offenses before, but whose sentencing proceedings occurred after, its August 3, 2010, effective date. In my view, the general saving statute, 1 U.S. C. §109, dictates that the new, more lenient mandatory minimum provisions do not apply to such pre-enactment offenders. I The Court starts off on the right foot by acknowledging, ante, at 10–11, that the ameliorative amendments at issue 2 DORSEY v. UNITED STATES SCALIA, J., dissenting here trigger application of the general saving statute. Enacted in 1871 to reverse the common-law rule that the repeal or amendment of a criminal statute would abate all nonfinal convictions under the repealed or amended stat- ute, see Warden v. Marrero, 417 U.S. 653, 660 (1974), the saving statute provides in relevant part: “The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or lia- bility incurred under such statute, unless the repeal- ing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the pur- pose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liabil- ity.” 1 U.S. C. §109. By reducing the statutory penalties for crack cocaine offenses, the Fair Sentencing Act “repeal[ed]” the former penalties; for defendants who committed their offenses (and hence “incurred” the penalties) while the prior law was in force, §109 directs that the prior law “shall be treated as still remaining in force.” Although §109 purports to require that subsequent legislation opting out of its default rule must do so “ex- pressly,” the Court correctly observes, ante, at 12, that express-statement requirements of this sort are ineffec- tive. See Lockhart v. United States, 546 U.S. 142, 147– 150 (2005) (SCALIA, J., concurring). Because “one legis- lature cannot abridge the powers of a succeeding legisla- ture,” Fletcher v. Peck, 6 Cranch 87, 135 (1810), a statute is “alterable when the legislature shall please to alter it,” Marbury v. Madison, 1 Cranch 137, 177 (1803). Conse- quently, the express-statement requirement of §109 is itself subject to repeal on the same terms as any other statute, which is to say that a repeal may be accomplished by implication. See, e.g., Marrero, supra, at 659–660, n. 10; Great Northern R. Co. v. United States, 208 U. S. Cite as: 567 U. S. ____ (2012) 3 SCALIA, J., dissenting 452, 465 (1908). Understanding the interpretive problem posed by these cases as one of implied repeal helps to explain the Court’s observation, ante, at 13, that what is required to override §109’s default rule is a clear demonstration of congres- sional intent to do so. Admittedly, our cases have not spoken with the utmost clarity on this point. In Marrero, for example, we suggested that a “fair implication” from a subsequently enacted statute would suffice, 417 U. S., at 660, n. 10, while in Hertz v. Woodman, 218 U.S. 205 (1910), we used the phrase “clear implication,” id., at 218 (emphasis added); see also ibid. (“plain implication”). In Great Northern R. Co., we split the difference, stating at one point that §109 controls unless Congress expresses a contrary intention “either expressly or by necessary impli- cation in a subsequent enactment,” 208 U. S., at 465 (em- phasis added), but suggesting at another point that a “fair implication,” id., at 466, would do. In my view, the “fair implication” formulation understates the burden properly imposed on a defendant who would claim an implicit exception from §109’s terms. Because the effect of such an exception is to work a pro tanto repeal of §109’s appli- cation to the defendant’s case, the implication from the subsequently enacted statute must be clear enough to overcome our strong presumption against implied repeals. See, e.g., Matsushita Elec. Industrial Co. v. Epstein, 516 U.S. 367, 381 (1996); Posadas v. National City Bank, 296 U.S. 497, 503 (1936). Thus, we should conclude that Congress has deviated from §109 (or any similar statute establishing a background interpretive principle) only when the “plain import of a later statute directly conflicts” with it. Lockhart, supra, at 149 (SCALIA, J., concurring) (emphasis added). 4 DORSEY v. UNITED STATES SCALIA, J., dissenting II A The considerations relied upon by the Court do not come close to satisfying the demanding standard for repeal by implication. As an initial matter, there is no persuasive force whatever to the Court’s observation that continuing to apply the prior mandatory minimums to pre-enactment offenders would “involve imposing upon the pre-Act of- fender a pre-Act sentence at a time after Congress had specifically found in the Fair Sentencing Act that such a sentence was unfairly long.” Ante, at 15. That is true whenever Congress reduces a criminal penalty, and so is a consequence that Congress affirmatively embraced when it said in §109 that ameliorative amendments to criminal statutes do not apply to pre-enactment conduct. Nor does it matter that Congress has instructed district courts, when applying the Federal Sentencing Guidelines, to ap- ply the version in force on the date of sentencing, with the object of reducing disparities in sentences between similar defendants who are sentenced for the same con- duct at the same time. See 18 U.S. C. §3553(a)(4)(A)(ii). The presumption against implied repeals requires us to give effect, if possible, to both §3553(a)(4)(A)(ii) and §109. “The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are ca- pable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the con- trary, to regard each as effective.” Morton v. Mancari, 417 U.S. 535, 551 (1974). We may readily do so here by hold- ing that §3553(a)(4)(A)(ii) applies to Guidelines amend- ments, and §109 to statutory ones. The Court also stresses that the Fair Sentencing Act instructs the Sentencing Commission to promulgate “as soon as practicable” (and not later than 90 days after August 3, 2010) “such conforming amendments” to the Sentencing Guidelines “as the Commission determines Cite as: 567 U. S. ____ (2012) 5 SCALIA, J., dissenting necessary to achieve consistency with other guideline provisions and applicable law.” §8, 124 Stat. 2374. The argument goes that, because the Commission implemented this directive by reducing the Guidelines ranges for crack cocaine offenses to track the 18-to-1 crack-to-powder ratio reflected in the new mandatory minimums, see 75 Fed. Reg. 66191 (2010), and because the general rule is that a sentencing court should apply the version of the Guidelines in effect at the time of sentencing, see 18 U.S. C. §3553(a)(4)(A)(ii), Congress must have understood that the new mandatory minimums would apply immedi- ately, since otherwise there would be a mismatch between the statutory penalties and Guidelines ranges. That conclusion simply does not follow. For one thing, the argument begs the very question presented here: What is the “applicable law” relevant to pre-enactment offenders who are sentenced after enactment? The Commission could well have answered this question by concluding that, in light of §109, the law applicable to such offenders is the pre-Act mandatory minimums. It might therefore have retained, as to those offenders, the existing Guidelines ranges reflecting a higher crack-to-powder ratio. Although rare, it is not unheard of for the Commission to establish Guidelines whose application turns on the date of commis- sion of the defendant’s offense. See United States Sen- tencing Commission, Guidelines Manual §5E1.1(g)(1) (Nov. 2011) (governing restitution for offenses committed on or after November 1, 1997, and providing that the prior version of the Guideline shall govern all other cases); id., §8B1.1(f)(1) (same for restitution obligations of organiza- tional defendants). Of course, the Commission did not interpret the Fair Sentencing Act’s directive in this man- ner. But the possibility that it could (not to mention the probability that it should) have done so illustrates the folly of basing inferences about what Congress intended when it passed the Fair Sentencing Act on decisions the 6 DORSEY v. UNITED STATES SCALIA, J., dissenting Commission would not make until several months later.1 Moreover, even if one takes it as given that the Com- mission’s new crack cocaine Guidelines would apply the lower 18-to-1 ratio to all defendants sentenced after the new Guidelines were put in place, it would not follow that Congress necessarily expected the new mandatory mini- mums to apply to pre-enactment offenders. The directive to update the Guidelines on an emergency basis is equally consistent with Congress’s seeking to avoid a mismatch between the Guidelines and the statutory penalties for post-enactment offenders sentenced shortly after the Act’s effective date. Petitioners and the Government discount this explana- tion, noting that because of the lags associated with in- vestigating and prosecuting drug offenses, most of the defendants sentenced on the 91st day after the Fair Sentencing Act’s enactment were sure to be pre-Act of- fenders. If Congress did not expect the new mandatory minimums to apply to such offenders, they say, there would have been no need to ensure that revised Guidelines were in place so quickly. But most is not all, and it would have been entirely sensible for Congress to worry that some post-Act offenders—offenders clearly subject to the new mandatory minimums—would nonetheless be sen- tenced under outdated Guidelines if the Guidelines were not revised in short order. The 11-month median time between indictment and —————— 1 Congressional reliance on future Commission action might be plau- sible if the Commission had a settled practice of tying reductions in statutory mandatory minimums to immediately applicable reductions in Guidelines ranges, without any distinction based on the timing of the defendant’s offense. But the Court does not cite any such settled practice, and I am not aware of any. Presumably there has been no occasion for a practice to develop either way, since congressional legislation reducing criminal penalties is, in this day and age, very rare. Cite as: 567 U. S. ____ (2012) 7 SCALIA, J., dissenting sentencing for non-marijuana federal drug offenses, see Administrative Office of United States Courts, Judicial Business of the United States Courts, p. 272 (2010) (Table D–10), does not establish that prompt issuance of new Guidelines for post-Act offenders could not have been a pressing concern. Because that is a median figure, it shows that half of all drug defendants are sentenced sooner than 11 months after being indicted. And it is only an aggregate figure. For drug possession offenses—relevant here because the Fair Sentencing Act eliminated the mandatory minimum sentence previously applicable to simple possession of crack cocaine, see §3, 124 Stat. 2372—the equivalent figure was just 5.4 months from indictment to sentencing. The pace of criminal cases also varies considerably from district to district. In the East- ern District of Virginia, for instance, the median time from indictment to sentencing for all criminal cases was just 3.6 months. See Judicial Business, supra, at 252 (Table D–6). What is more, without the Fair Sentencing Act’s emer- gency directive, amendments to the Guidelines to implement the Act likely would not have been put in place until more than a year after its passage.2 In the interim, a great —————— 2 In the ordinary course, the Commission may submit proposed Guidelines amendments to Congress “at or after the beginning of a regular session of Congress, but not later than the first day of May.” 28 U.S. C. §994(p). Unless disapproved by Congress, the proposed amendments “take effect on a date specified by the Commission, which shall be no earlier than 180 days after being so submitted and no later than the first day of November of the calendar year in which the amendment . . . is submitted.” Ibid. As a matter of practice, the Commission has adopted November 1 as the default effective date for its proposed amendments. See United States Sentencing Commission, Rules of Practice and Procedure, Rule 4.1 (amended Aug. 2007). Because the Fair Sentencing Act was enacted on August 3, 2010—after May 1—there would have been no opportunity for the Commission to submit proposed amendments to Congress until January 2011. Given the 180-day waiting period, the amendments could not have gone into force until the very end of June 2011 at the earliest. And in all likeli- 8 DORSEY v. UNITED STATES SCALIA, J., dissenting many post-Act offenders might have been sentenced under the outdated Guidelines, even though they were clearly entitled to take advantage of the statutory amendments. Because the emergency authority conferred on the Com- mission can reasonably be understood as directed at this mismatch problem, it creates no clear implication that Congress expected the new statutory penalties to apply to pre-enactment offenders. The Court’s last argument is that continuing to apply the prior mandatory minimums to pre-enactment offend- ers would lead to anomalous, disproportionate sentencing results. It is true enough, as the Court notes, ante, at 16– 18, that applying the prior mandatory minimums in tan- dem with the new Guidelines provisions—which track the new, more lenient mandatory minimums—leads to a series of “cliffs” at the mandatory minimum thresholds. But this does not establish that Congress clearly meant the new mandatory minimums to apply to pre-enactment offenders. As noted above, supra, at 5–6, there is no rea- son to take the Guidelines amendments ultimately prom- ulgated by the Commission as a given when evaluating what Congress would have understood when the Fair Sentencing Act was enacted. The Commission could have promulgated amendments that ameliorated this problem by retaining the old Guidelines ranges for pre-enactment offenders. Moreover, although the cliffs produced by the mismatch between Guidelines and statutory penalties are admittedly inconsistent with the premise of the Guidelines system that sentences should vary in proportion to the gravity of the offense and the culpability of the offender, see 18 U.S. C. §3553(a)(1), (a)(2)(A), the same objection can be lodged against any mandatory minimum that trumps an otherwise applicable Guidelines range. And it is not as —————— hood, they would not have been effective until November 1, 2011. Cite as: 567 U. S. ____ (2012) 9 SCALIA, J., dissenting though the results of continuing to apply the pre-Act statutory penalties are so senseless as to establish that Congress must not have intended them. Retaining the old mandatory minimums ensures at least rough equivalence in sentences for defendants who committed their crimes at the same time, but were sentenced at different times— even as it leads to disparities for defendants who are sen- tenced at the same time, but committed their offenses at different times. In light of this plausible basis for con- tinuing to apply the prior law to pre-enactment offenders, there is no reason to conclude that Congress necessarily expected the new statutory penalties to apply. B Petitioners and the Government press a handful of ad- ditional arguments which require only brief discussion. They first contend that an intention to apply the new mandatory minimums to pre-enactment offenders can be inferred from §10 of the Fair Sentencing Act, 124 Stat. 2375, which instructs the Commission to study the effects of the new law and make a report to Congress within five years. The suggestion is that, if the statutory penalties do not apply to pre-enactment offenders, then the Act would have no effect on many defendants sentenced during the study period, which would in turn undermine Con- gress’s goal of compiling useful data. This is makeweight. Whether or not the new mandatory minimums are held applicable to pre-enactment offenders, they will be applied to many post-enactment offenders during the study period, and the Commission will have the opportunity to collect useful data. The study provision simply has nothing to say about the question at issue here. The Government also notes that the Senate bill that ultimately became the Fair Sentencing Act was based on an earlier bill which contained a provision that would have delayed the Act’s effective date until 180 days after 10 DORSEY v. UNITED STATES SCALIA, J., dissenting passage, and specifically provided that “[t]here shall be no retroactive application of any portion of this Act.” H. R. 265, 111th Cong., 1st Sess., §11 (2009). Even if one is inclined to base inferences about statutory meaning on unenacted versions of the relevant bill, but see Hamdan v. Rumsfeld, 548 U.S. 557, 668 (2006) (SCALIA, J., dissent- ing), this argument from drafting history is unpersuasive. That Congress considered and rejected a proposal that would have delayed application of the Act until 180 days after passage says nothing about whether the version finally enacted applies to defendants whose criminal con- duct pre-dated the Act. Moreover, the same bill would have provided permissive authority for the Commission to promulgate amended Guidelines on an emergency basis, see §8(a), notwithstanding its delayed effective date provi- sion. This point undercuts the argument that emergency amendment authority and immediate application of the new statutory penalties go hand-in-hand. Petitioners finally appeal to the rule of lenity and the canon of constitutional avoidance. But the rule of lenity has no application here, because the background principle supplied by §109 serves to remove the ambiguity that is a necessary precondition to invocation of the rule. See Deal v. United States, 508 U.S. 129, 135 (1993). The canon of constitutional avoidance also has no application here. Although many observers viewed the 100-to-1 crack-to- powder ratio under the prior law as having a racially disparate impact, see, e.g., United States Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy 8 (Apr. 1997), only intentional discrimination may violate the equal protection component of the Fifth Amendment’s Due Process Clause. See Ar­ lington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264–265 (1977); Adarand Construc­ tors, Inc. v. Peña, 515 U.S. 200, 217 (1995). There is thus no constitutional doubt triggered by application of the Cite as: 567 U. S. ____ (2012) 11 SCALIA, J., dissenting prior mandatory minimums, much less the sort of “serious constitutional doub[t]” required to invoke the avoidance canon. Clark v. Martinez, 543 U.S. 371, 381 (2005). * * * In the end, the mischief of the Court’s opinion is not the result in this particular case, but rather the unpredictabil- ity it injects into the law for the future. The Court’s de- cision is based on “[s]ix considerations, taken together,” ante, at 11, and we are not told whether any one of these considerations might have justified the Court’s result in isolation, or even the relative importance of the various considerations. One of them (the Commission’s emergency authority to issue conforming amendments to the Guide- lines) is a particular feature of the statute at issue in these cases, but another (the fact that applying the prior statu- tory penalties alongside the new Guidelines leads to a mismatch) is a general feature of a sentencing scheme that calibrates Guidelines ranges to the statutory manda- tory minimums for a given offense. Are we to conclude that, after the Sentencing Reform Act, §109 has no further application to criminal penalties, at least when statutory amendments lead to modification of the Guidelines? Por- tions of the Court’s opinion could be understood to sug- gest that result, but the Court leaves us in suspense. That is most unfortunate, because the whole point of §109, as well as other provisions of the Dictionary Act, see 1 U.S. C. §§1–8, and the definitional provisions of the federal criminal law, see 18 U.S. C. §§5–27 (2006 ed. and Supp. IV), is to provide a stable set of background princi- ples that will promote effective communication between Congress and the courts. In this context, stability is en- sured by a healthy respect for our presumption against implied repeals, which demands a clear showing before we conclude that Congress has deviated from one of these background interpretive principles. Because the Court’s 12 DORSEY v. UNITED STATES SCALIA, J., dissenting result cannot be reconciled with this approach, I respect- fully dissent

In the Fair Sentencing Act of 2010, Congress increased the threshold quantities of crack co- caine required to trigger the 5- and 10-year mandatory minimum penalties associated with offenses involving the manufacture, distribution, or dispensation of the drug, and eliminated the 5-year mandatory minimum previously associated with simple possession of it. The Act is silent as to whether these changes apply to defendants who committed their offenses before, but whose sentencing proceedings occurred after, its August 3, 2010, effective date. In my view, the general saving statute, 1 U.S. C. dictates that the new, more lenient mandatory minimum provisions do not apply to such pre-enactment offenders. I The Court starts off on the right foot by acknowledging, ante, at 10–11, that the ameliorative amendments at issue 2 DORSEY v. UNITED STATES SCALIA, J., dissenting here trigger application of the general saving statute. Enacted in 1871 to reverse the common-law rule that the repeal or amendment of a criminal statute would abate all nonfinal convictions under the repealed or amended stat- ute, see the saving statute provides in relevant part: “The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or lia- bility incurred under such statute, unless the repeal- ing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the pur- pose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liabil- ity.” 1 U.S. C. By reducing the statutory penalties for crack cocaine offenses, the Fair Sentencing Act “repeal[ed]” the former penalties; for defendants who committed their offenses (and hence “incurred” the penalties) while the prior law was in force, directs that the prior law “shall be treated as still remaining in force.” Although purports to require that subsequent legislation opting out of its default rule must do so “ex- pressly,” the Court correctly observes, ante, at 12, that express-statement requirements of this sort are ineffec- tive. See 147– 150 Because “one legis- lature cannot abridge the powers of a succeeding legisla- ture,” a statute is “alterable when the legislature shall please to alter it,” Conse- quently, the express-statement requirement of is itself subject to repeal on the same terms as any other statute, which is to say that a repeal may be accomplished by implication. See, e.g., at 659–, n. 10; Great Northern R. Co. v. United States, 208 U. S. Cite as: 567 U. S. (2012) 3 SCALIA, J., dissenting 452, 465 (1908). Understanding the interpretive problem posed by these cases as one of implied repeal helps to explain the Court’s observation, ante, at 13, that what is required to override ’s default rule is a clear demonstration of congres- sional intent to do so. Admittedly, our cases have not spoken with the utmost clarity on this point. In for example, we suggested that a “fair implication” from a subsequently enacted statute would suffice, 417 U. S., at n. 10, while in (1910), we used the phrase “clear implication,” (emphasis added); see also In Great Northern R. Co., we split the difference, stating at one point that controls unless Congress expresses a contrary intention “either expressly or by necessary impli- cation in a subsequent enactment,” (em- phasis added), but suggesting at another point that a “fair implication,” would do. In my view, the “fair implication” formulation understates the burden properly imposed on a defendant who would claim an implicit exception from ’s terms. Because the effect of such an exception is to work a pro tanto repeal of ’s appli- cation to the defendant’s case, the implication from the subsequently enacted statute must be clear enough to overcome our strong presumption against implied repeals. See, e.g., Matsushita Elec. Industrial Co. v. Epstein, 516 U.S. 367, (1996); Posadas v. National City Bank, 296 U.S. 497, 503 (1936). Thus, we should conclude that Congress has deviated from (or any similar statute establishing a background interpretive principle) only when the “plain import of a later statute directly conflicts” with it. (emphasis added). 4 DORSEY v. UNITED STATES SCALIA, J., dissenting II A The considerations relied upon by the Court do not come close to satisfying the demanding standard for repeal by implication. As an initial matter, there is no persuasive force whatever to the Court’s observation that continuing to apply the prior mandatory minimums to pre-enactment offenders would “involve imposing upon the pre-Act of- fender a pre-Act sentence at a time after Congress had specifically found in the Fair Sentencing Act that such a sentence was unfairly long.” Ante, at 15. That is true whenever Congress reduces a criminal penalty, and so is a consequence that Congress affirmatively embraced when it said in that ameliorative amendments to criminal statutes do not apply to pre-enactment conduct. Nor does it matter that Congress has instructed district courts, when applying the Federal Sentencing Guidelines, to ap- ply the version in force on the date of sentencing, with the object of reducing disparities in sentences between similar defendants who are sentenced for the same con- duct at the same time. See 18 U.S. C. The presumption against implied repeals requires us to give effect, if possible, to both and “The courts are not at liberty to pick and choose among congressional enactments, and when two statutes are ca- pable of co-existence, it is the duty of the courts, absent a clearly expressed congressional intention to the con- trary, to regard each as effective.” Morton v. Mancari, 417 U.S. 535, 551 We may readily do so here by hold- ing that applies to Guidelines amend- ments, and to statutory ones. The Court also stresses that the Fair Sentencing Act instructs the Sentencing Commission to promulgate “as soon as practicable” (and not later than 90 days after August 3, 2010) “such conforming amendments” to the Sentencing Guidelines “as the Commission determines Cite as: 567 U. S. (2012) 5 SCALIA, J., dissenting necessary to achieve consistency with other guideline provisions and applicable law.” The argument goes that, because the Commission implemented this directive by reducing the Guidelines ranges for crack cocaine offenses to track the 18-to-1 crack-to-powder ratio reflected in the new mandatory minimums, see 75 Fed. Reg. 66191 (2010), and because the general rule is that a sentencing court should apply the version of the Guidelines in effect at the time of sentencing, see 18 U.S. C. Congress must have understood that the new mandatory minimums would apply immedi- ately, since otherwise there would be a mismatch between the statutory penalties and Guidelines ranges. That conclusion simply does not follow. For one thing, the argument begs the very question presented here: What is the “applicable law” relevant to pre-enactment offenders who are sentenced after enactment? The Commission could well have answered this question by concluding that, in light of the law applicable to such offenders is the pre-Act mandatory minimums. It might therefore have retained, as to those offenders, the existing Guidelines ranges reflecting a higher crack-to-powder ratio. Although rare, it is not unheard of for the Commission to establish Guidelines whose application turns on the date of commis- sion of the defendant’s offense. See United States Sen- tencing Commission, Guidelines Manual (Nov. 2011) (governing restitution for offenses committed on or after November 1, 1997, and providing that the prior version of the Guideline shall govern all other cases); (same for restitution obligations of organiza- tional defendants). Of course, the Commission did not interpret the Fair Sentencing Act’s directive in this man- ner. But the possibility that it could (not to mention the probability that it should) have done so illustrates the folly of basing inferences about what Congress intended when it passed the Fair Sentencing Act on decisions the 6 DORSEY v. UNITED STATES SCALIA, J., dissenting Commission would not make until several months later.1 Moreover, even if one takes it as given that the Com- mission’s new crack cocaine Guidelines would apply the lower 18-to-1 ratio to all defendants sentenced after the new Guidelines were put in place, it would not follow that Congress necessarily expected the new mandatory mini- mums to apply to pre-enactment offenders. The directive to update the Guidelines on an emergency basis is equally consistent with Congress’s seeking to avoid a mismatch between the Guidelines and the statutory penalties for post-enactment offenders sentenced shortly after the Act’s effective date. Petitioners and the Government discount this explana- tion, noting that because of the lags associated with in- vestigating and prosecuting drug offenses, most of the defendants sentenced on the 91st day after the Fair Sentencing Act’s enactment were sure to be pre-Act of- fenders. If Congress did not expect the new mandatory minimums to apply to such offenders, they say, there would have been no need to ensure that revised Guidelines were in place so quickly. But most is not all, and it would have been entirely sensible for Congress to worry that some post-Act offenders—offenders clearly subject to the new mandatory minimums—would nonetheless be sen- tenced under outdated Guidelines if the Guidelines were not revised in short order. The 11-month median time between indictment and —————— 1 Congressional reliance on future Commission action might be plau- sible if the Commission had a settled practice of tying reductions in statutory mandatory minimums to immediately applicable reductions in Guidelines ranges, without any distinction based on the timing of the defendant’s offense. But the Court does not cite any such settled practice, and I am not aware of any. Presumably there has been no occasion for a practice to develop either way, since congressional legislation reducing criminal penalties is, in this day and age, very rare. Cite as: 567 U. S. (2012) 7 SCALIA, J., dissenting sentencing for non-marijuana federal drug offenses, see Administrative Office of United States Courts, Judicial of the United States Courts, p. 272 (2010) (Table D–10), does not establish that prompt issuance of new Guidelines for post-Act offenders could not have been a pressing concern. Because that is a median figure, it shows that half of all drug defendants are sentenced sooner than 11 months after being indicted. And it is only an aggregate figure. For drug possession offenses—relevant here because the Fair Sentencing Act eliminated the mandatory minimum sentence previously applicable to simple possession of crack cocaine, see 124 Stat. 2372—the equivalent figure was just 5.4 months from indictment to sentencing. The pace of criminal cases also varies considerably from district to district. In the East- ern District of Virginia, for instance, the median time from indictment to sentencing for all criminal cases was just 3.6 months. See Judicial What is more, without the Fair Sentencing Act’s emer- gency directive, amendments to the Guidelines to implement the Act likely would not have been put in place until more than a year after its passage.2 In the interim, a great —————— 2 In the ordinary course, the Commission may submit proposed Guidelines amendments to Congress “at or after the beginning of a regular session of Congress, but not later than the first day of May.” 28 U.S. C. Unless disapproved by Congress, the proposed amendments “take effect on a date specified by the Commission, which shall be no earlier than 180 days after being so submitted and no later than the first day of November of the calendar year in which the amendment is submitted.” As a matter of practice, the Commission has adopted November 1 as the default effective date for its proposed amendments. See United States Sentencing Commission, Rules of Practice and Procedure, Rule 4.1 (amended Aug. 2007). Because the Fair Sentencing Act was enacted on August 3, 2010—after May 1—there would have been no opportunity for the Commission to submit proposed amendments to Congress until January 2011. Given the 180-day waiting period, the amendments could not have gone into force until the very end of June 2011 at the earliest. And in all likeli- 8 DORSEY v. UNITED STATES SCALIA, J., dissenting many post-Act offenders might have been sentenced under the outdated Guidelines, even though they were clearly entitled to take advantage of the statutory amendments. Because the emergency authority conferred on the Com- mission can reasonably be understood as directed at this mismatch problem, it creates no clear implication that Congress expected the new statutory penalties to apply to pre-enactment offenders. The Court’s last argument is that continuing to apply the prior mandatory minimums to pre-enactment offend- ers would lead to anomalous, disproportionate sentencing results. It is true enough, as the Court notes, ante, at 16– 18, that applying the prior mandatory minimums in tan- dem with the new Guidelines provisions—which track the new, more lenient mandatory minimums—leads to a series of “cliffs” at the mandatory minimum thresholds. But this does not establish that Congress clearly meant the new mandatory minimums to apply to pre-enactment offenders. As noted at 5–6, there is no rea- son to take the Guidelines amendments ultimately prom- ulgated by the Commission as a given when evaluating what Congress would have understood when the Fair Sentencing Act was enacted. The Commission could have promulgated amendments that ameliorated this problem by retaining the old Guidelines ranges for pre-enactment offenders. Moreover, although the cliffs produced by the mismatch between Guidelines and statutory penalties are admittedly inconsistent with the premise of the Guidelines system that sentences should vary in proportion to the gravity of the offense and the culpability of the offender, see 18 U.S. C. (a)(2)(A), the same objection can be lodged against any mandatory minimum that trumps an otherwise applicable Guidelines range. And it is not as —————— hood, they would not have been effective until November 1, 2011. Cite as: 567 U. S. (2012) 9 SCALIA, J., dissenting though the results of continuing to apply the pre-Act statutory penalties are so senseless as to establish that Congress must not have intended them. Retaining the old mandatory minimums ensures at least rough equivalence in sentences for defendants who committed their crimes at the same time, but were sentenced at different times— even as it leads to disparities for defendants who are sen- tenced at the same time, but committed their offenses at different times. In light of this plausible basis for con- tinuing to apply the prior law to pre-enactment offenders, there is no reason to conclude that Congress necessarily expected the new statutory penalties to apply. B Petitioners and the Government press a handful of ad- ditional arguments which require only brief discussion. They first contend that an intention to apply the new mandatory minimums to pre-enactment offenders can be inferred from of the Fair Sentencing Act, 124 Stat. 2375, which instructs the Commission to study the effects of the new law and make a report to Congress within five years. The suggestion is that, if the statutory penalties do not apply to pre-enactment offenders, then the Act would have no effect on many defendants sentenced during the study period, which would in turn undermine Con- gress’s goal of compiling useful data. This is makeweight. Whether or not the new mandatory minimums are held applicable to pre-enactment offenders, they will be applied to many post-enactment offenders during the study period, and the Commission will have the opportunity to collect useful data. The study provision simply has nothing to say about the question at issue here. The Government also notes that the Senate bill that ultimately became the Fair Sentencing Act was based on an earlier bill which contained a provision that would have delayed the Act’s effective date until 180 days after 10 DORSEY v. UNITED STATES SCALIA, J., dissenting passage, and specifically provided that “[t]here shall be no retroactive application of any portion of this Act.” H. R. 265, 111th Cong., 1st Sess., (2009). Even if one is inclined to base inferences about statutory meaning on unenacted versions of the relevant bill, but see Hamdan v. Rumsfeld, (SCALIA, J., dissent- ing), this argument from drafting history is unpersuasive. That Congress considered and rejected a proposal that would have delayed application of the Act until 180 days after passage says nothing about whether the version finally enacted applies to defendants whose criminal con- duct pre-dated the Act. Moreover, the same bill would have provided permissive authority for the Commission to promulgate amended Guidelines on an emergency basis, see notwithstanding its delayed effective date provi- sion. This point undercuts the argument that emergency amendment authority and immediate application of the new statutory penalties go hand-in-hand. Petitioners finally appeal to the rule of lenity and the canon of constitutional avoidance. But the rule of lenity has no application here, because the background principle supplied by serves to remove the ambiguity that is a necessary precondition to invocation of the rule. See Deal v. United States, The canon of constitutional avoidance also has no application here. Although many observers viewed the 100-to-1 crack-to- powder ratio under the prior law as having a racially disparate impact, see, e.g., United States Sentencing Commission, Special Report to Congress: Cocaine and Federal Sentencing Policy 8 (Apr. 1997), only intentional discrimination may violate the equal protection component of the Fifth Amendment’s Due Process Clause. See Ar­ lington ; Adarand Construc­ tors, There is thus no constitutional doubt triggered by application of the Cite as: 567 U. S. (2012) 11 SCALIA, J., dissenting prior mandatory minimums, much less the sort of “serious constitutional doub[t]” required to invoke the avoidance canon. * * * In the end, the mischief of the Court’s opinion is not the result in this particular case, but rather the unpredictabil- ity it injects into the law for the future. The Court’s de- cision is based on “[s]ix considerations, taken together,” ante, at 11, and we are not told whether any one of these considerations might have justified the Court’s result in isolation, or even the relative importance of the various considerations. One of them (the Commission’s emergency authority to issue conforming amendments to the Guide- lines) is a particular feature of the statute at issue in these cases, but another (the fact that applying the prior statu- tory penalties alongside the new Guidelines leads to a mismatch) is a general feature of a sentencing scheme that calibrates Guidelines ranges to the statutory manda- tory minimums for a given offense. Are we to conclude that, after the Sentencing Reform Act, has no further application to criminal penalties, at least when statutory amendments lead to modification of the Guidelines? Por- tions of the Court’s opinion could be understood to sug- gest that result, but the Court leaves us in suspense. That is most unfortunate, because the whole point of as well as other provisions of the Dictionary Act, see 1 U.S. C. and the definitional provisions of the federal criminal law, see 18 U.S. C. (2006 ed. and Supp. IV), is to provide a stable set of background princi- ples that will promote effective communication between Congress and the courts. In this context, stability is en- sured by a healthy respect for our presumption against implied repeals, which demands a clear showing before we conclude that Congress has deviated from one of these background interpretive principles. Because the Court’s 12 DORSEY v. UNITED STATES SCALIA, J., dissenting result cannot be reconciled with this approach, I respect- fully dissent

per_curiam

per_curiam

Cross v. Pelican Bay State Prison

1999-05-24

https://www.courtlistener.com/opinion/1087694/cross-v-pelican-bay-state-prison/

https://www.courtlistener.com/api/rest/v3/clusters/1087694/

1998-064

Pro se petitioner Cross seeks leave to proceed in forma pauperis under Rule 39 of this Court. We deny these requests as frivolous pursuant to Rule 39.8. Cross is allowed until June 14, 1999, within which to pay the docketing fees required by Rule 38 and to submit his petitions in compliance with this Court's Rule 33.1. We also direct the Clerk not to accept any further petitions for certiorari from Cross in noncriminal matters unless he first pays the docketing fee required by Rule 38 and submits his petitions in compliance with Rule 33.1. Cross has repeatedly abused this Court's certiorari process. On March 8, 1999, we invoked Rule 39.8 to deny Cross in forma pauperis status with respect to four petitions for certiorari. See Cross v. Pelican Bay State Prison, post, p. 1003 (three cases); Cross v. Cambra, post, p. 1003. Before that time, Cross had filed six petitions for certiorari, all of which were both patently frivolous and had been denied *812 without recorded dissent. The 2 instant petitions bring Cross' total number of frivolous filings to 12, and he has 4 additional filings—all of them patently frivolous—pending before this Court. We enter the order barring prospective filings for the reasons discussed in Martin v. District of Columbia Court of Appeals, 506 U.S. 1 (1992) (per curiam). Cross' abuse of the writ of certiorari has been in noncriminal cases, and we limit our sanction accordingly. The order therefore will not prevent Cross from petitioning to challenge criminal sanctions which might be imposed on him. Similarly, because Cross has not abused this Court's extraordinary writs procedures, the order will not prevent him from filing nonfrivolous petitions for extraordinary writs. The order will, however, allow this Court to devote its limited resources to the claims of petitioners who have not abused our certiorari process. It is so ordered.

Pro se petitioner Cross seeks leave to proceed in forma pauperis under Rule 39 of this Court. We deny these requests as frivolous pursuant to Rule 39.8. Cross is allowed until June 14, 1999, within which to pay the docketing fees required by Rule 38 and to submit his petitions in compliance with this Court's Rule 33.1. We also direct the Clerk not to accept any further petitions for certiorari from Cross in noncriminal matters unless he first pays the docketing fee required by Rule 38 and submits his petitions in compliance with Rule 33.1. Cross has repeatedly abused this Court's certiorari process. On March 8, 1999, we invoked Rule 39.8 to deny Cross in forma pauperis status with respect to four petitions for certiorari. See Cross v. Pelican Bay State Prison, post, p. 1003 (three cases); Cross v. Cambra, post, p. 1003. Before that time, Cross had filed six petitions for certiorari, all of which were both patently frivolous and had been denied *812 without recorded dissent. The 2 instant petitions bring Cross' total number of frivolous filings to 12, and he has 4 additional filings—all of them patently frivolous—pending before this Court. We enter the order barring prospective filings for the reasons discussed in Cross' abuse of the writ of certiorari has been in noncriminal cases, and we limit our sanction accordingly. The order therefore will not prevent Cross from petitioning to challenge criminal sanctions which might be imposed on him. Similarly, because Cross has not abused this Court's extraordinary writs procedures, the order will not prevent him from filing nonfrivolous petitions for extraordinary writs. The order will, however, allow this Court to devote its limited resources to the claims of petitioners who have not abused our certiorari process. It is so ordered.

Justice Stevens

dissenting

Cross v. Pelican Bay State Prison

1999-05-24

https://www.courtlistener.com/opinion/1087694/cross-v-pelican-bay-state-prison/

https://www.courtlistener.com/api/rest/v3/clusters/1087694/

1998-064

As I have suggested in the past, the Court uses more of its "limited resources" preparing, entering, and policing orders of this kind than it would by following a consistent policy of simply denying the many frivolous petitions that are filed by a large number of litigants. See Martin v. District of Columbia Court of Appeals, 506 U.S. 1, 4 (1992) (Stevens, J., dissenting), and cases cited. I respectfully dissent.

As I have suggested in the past, the Court uses more of its "limited resources" preparing, entering, and policing orders of this kind than it would by following a consistent policy of simply denying the many frivolous petitions that are filed by a large number of litigants. See and cases cited. I respectfully dissent.

Justice Thomas

majority

Federal Maritime Comm'n v. South Carolina Ports Authority

2002-05-28

https://www.courtlistener.com/opinion/118511/federal-maritime-commn-v-south-carolina-ports-authority/

https://www.courtlistener.com/api/rest/v3/clusters/118511/

2001-053

This case presents the question whether state sovereign immunity precludes petitioner Federal Maritime Commission (FMC or Commission) from adjudicating a private party's complaint that a state-run port has violated the Shipping Act of 1984, 46 U.S. C. App. § 1701 et seq. (1994 ed. and Supp. V). We hold that state sovereign immunity bars such an adjudicative proceeding. I On five occasions, South Carolina Maritime Services, Inc. (Maritime Services), asked respondent South Carolina State Ports Authority (SCSPA) for permission to berth a cruise ship, the M/V Tropic Sea, at the SCSPA's port facilities in Charleston, South Carolina. Maritime Services intended to offer cruises on the M/V Tropic Sea originating from the Port of Charleston. Some of these cruises would stop in the Bahamas while others would merely travel in international waters before returning to Charleston with no intervening ports of call. On all of these trips, passengers would be permitted to participate in gambling activities while on board. The SCSPA repeatedly denied Maritime Services' requests, contending that it had an established policy of denying berths in the Port of Charleston to vessels whose primary purpose was gambling. As a result, Maritime Services *748 filed a complaint with the FMC,[1] contending that the SCSPA's refusal to provide berthing space to the M/V Tropic Sea violated the Shipping Act. Maritime Services alleged in its complaint that the SCSPA had implemented its antigambling policy in a discriminatory fashion by providing berthing space in Charleston to two Carnival Cruise Lines vessels even though Carnival offered gambling activities on these ships. Maritime Services therefore complained that the SCSPA had unduly and unreasonably preferred Carnival over Maritime Services in violation of 46 U.S. C. App. § 1709(d)(4) (1994 ed., Supp. V),[2] and unreasonably refused to deal or negotiate with Maritime Services in violation of § 1709(b)(10).[3] App. 14-15. It further alleged that the SCSPA's unlawful actions had inflicted upon Maritime Services a "loss of profits, loss of earnings, loss of sales, and loss of business opportunities." Id., at 15. To remedy its injuries, Maritime Services prayed that the FMC: (1) seek a temporary restraining order and preliminary injunction in the United States District Court for the District of South Carolina "enjoining [the SCSPA] from utilizing its discriminatory practice to refuse to provide berthing space and passenger services to Maritime Services;"[4]*749 (2) direct the SCSPA to pay reparations to Maritime Services as well as interest and reasonable attorneys' fees;[5] (3) issue an order commanding, among other things, the SCSPA to cease and desist from violating the Shipping Act; and (4) award Maritime Services "such other and further relief as is just and proper." Id., at 16. Consistent with the FMC's Rules of Practice and Procedure, Maritime Services' complaint was referred to an Administrative Law Judge (ALJ). See 46 CFR § 502.223 (2001). The SCSPA then filed an answer, maintaining, inter alia, that it had adhered to its antigambling policy in a nondiscriminatory manner. It also filed a motion to dismiss, asserting, as relevant, that the SCSPA, as an arm of the State of South Carolina, was "entitled to Eleventh Amendment immunity" from Maritime Services' suit. App. 41. The SCSPA argued that "the Constitution prohibits Congress from passing a statute authorizing Maritime Services to file [this] Complaint before the Commission and, thereby, sue the State of South Carolina for damages and injunctive relief." Id., at 44. The ALJ agreed, concluding that recent decisions of this Court "interpreting the 11th Amendment and State sovereign immunity from private suits . . . require[d] that [Maritime Services'] complaint be dismissed." App. to Pet. for Cert. 49a (emphasis in original). Relying on Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996), in which we held that Congress, pursuant to its Article I powers, cannot abrogate *750 state sovereign immunity, the ALJ reasoned that "[i]f federal courts that are established under Article III of the Constitution must respect States' 11th Amendment immunity and Congress is powerless to override the States' immunity under Article I of the Constitution, it is irrational to argue that an agency like the Commission, created under an Article I statute, is free to disregard the 11th Amendment or its related doctrine of State immunity from private suits." App. to Pet. for Cert. 59a (emphasis in original). The ALJ noted, however, that his decision did not deprive the FMC of its "authority to look into [Maritime Services'] allegations of Shipping Act violations and enforce the Shipping Act." Id., at 60a. For example, the FMC could institute its own formal investigatory proceeding, see 46 CFR § 502.282 (2001), or refer Maritime Services' allegations to its Bureau of Enforcement, App. to Pet. for Cert. 60a-61a. While Maritime Services did not appeal the ALJ's dismissal of its complaint, the FMC on its own motion decided to review the ALJ's ruling to consider whether state sovereign immunity from private suits extends to proceedings before the Commission. Id., at 29a-30a. It concluded that "[t]he doctrine of state sovereign immunity . . . is meant to cover proceedings before judicial tribunals, whether Federal or state, not executive branch administrative agencies like the Commission." Id., at 33a. As a result, the FMC held that sovereign immunity did not bar the Commission from adjudicating private complaints against state-run ports and reversed the ALJ's decision dismissing Maritime Services' complaint. Id., at 35a. The SCSPA filed a petition for review, and the United States Court of Appeals for the Fourth Circuit reversed. Observing that "any proceeding where a federal officer adjudicates disputes between private parties and unconsenting states would not have passed muster at the time of the Constitution's passage nor after the ratification of the Eleventh Amendment," the Court of Appeals reasoned that "[s]uch an *751 adjudication is equally as invalid today, whether the forum be a state court, a federal court, or a federal administrative agency." 243 F.3d 165, 173 (2001). Reviewing the "precise nature" of the procedures employed by the FMC for resolving private complaints, the Court of Appeals concluded that the proceeding "walks, talks, and squawks very much like a lawsuit" and that "[i]ts placement within the Executive Branch cannot blind us to the fact that the proceeding is truly an adjudication." Id., at 174. The Court of Appeals therefore held that because the SCSPA is an arm of the State of South Carolina,[6] sovereign immunity precluded the FMC from adjudicating Maritime Services' complaint, and remanded the case with instructions that it be dismissed. Id., at 179. We granted the FMC's petition for certiorari, 534 U.S. 971 (2001), and now affirm. II Dual sovereignty is a defining feature of our Nation's constitutional blueprint. See Gregory v. Ashcroft, 501 U.S. 452, 457 (1991). States, upon ratification of the Constitution, did not consent to become mere appendages of the Federal Government. Rather, they entered the Union "with their sovereignty intact." Blatchford v. Native Village of Noatak, 501 U.S. 775, 779 (1991). An integral component of that "residuary and inviolable sovereignty," The Federalist No. 39, p. 245 (C. Rossiter ed. 1961) (J. Madison), retained by *752 the States is their immunity from private suits. Reflecting the widespread understanding at the time the Constitution was drafted, Alexander Hamilton explained: "It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State of the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States . . . ." Id., No. 81, at 487-488 (emphasis in original). States, in ratifying the Constitution, did surrender a portion of their inherent immunity by consenting to suits brought by sister States or by the Federal Government. See Alden v. Maine, 527 U.S. 706, 755 (1999). Nevertheless, the Convention did not disturb States' immunity from private suits, thus firmly enshrining this principle in our constitutional framework. "The leading advocates of the Constitution assured the people in no uncertain terms that the Constitution would not strip the States of sovereign immunity." Id., at 716. The States' sovereign immunity, however, fell into peril in the early days of our Nation's history when this Court held in Chisholm v. Georgia, 2 Dall. 419 (1793), that Article III authorized citizens of one State to sue another State in federal court. The "decision `fell upon the country with a profound shock.' " Alden, supra, at 720 (quoting 1 C. Warren, The Supreme Court in United States History 96 (rev. ed. 1926)). In order to overturn Chisholm, Congress quickly passed the Eleventh Amendment and the States ratified it speedily. The Amendment clarified that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, *753 or by Citizens or Subjects of any Foreign State." We have since acknowledged that the Chisholm decision was erroneous. See, e. g., Alden, 527 U. S., at 721-722. Instead of explicitly memorializing the full breadth of the sovereign immunity retained by the States when the Constitution was ratified, Congress chose in the text of the Eleventh Amendment only to "address the specific provisions of the Constitution that had raised concerns during the ratification debates and formed the basis of the Chisholm decision." Id., at 723. As a result, the Eleventh Amendment does not define the scope of the States' sovereign immunity; it is but one particular exemplification of that immunity. Cf. Blatchford, supra, at 779 ("[W]e have understood the Eleventh Amendment to stand not so much for what it says, but for the presupposition of our constitutional structure which it confirms"). III We now consider whether the sovereign immunity enjoyed by States as part of our constitutional framework applies to adjudications conducted by the FMC. Petitioner FMC and respondent United States[7] initially maintain that the Court of Appeals erred because sovereign immunity only shields States from exercises of "judicial power" and FMC adjudications are not judicial proceedings. As support for their position, they point to the text of the Eleventh Amendment and contend that "[t]he Amendment's reference to `judicial Power' and to `any suit in law or equity' clearly mark it as an immunity from judicial process." Brief for United States 15. *754 For purposes of this case, we will assume, arguendo, that in adjudicating complaints filed by private parties under the Shipping Act, the FMC does not exercise the judicial power of the United States. Such an assumption, however, does not end our inquiry as this Court has repeatedly held that the sovereign immunity enjoyed by the States extends beyond the literal text of the Eleventh Amendment.[8] See, e. g., Alden, supra (holding that sovereign immunity shields States from private suits in state courts pursuant to federal causes of action); Blatchford v. Native Village of Noatak, 501 U.S. 775 (1991) (applying state sovereign immunity to suits by Indian tribes); Principality of Monaco v. Mississippi, 292 U.S. 313 (1934) (applying state sovereign immunity to suits by foreign nations); Ex parte New York, 256 U.S. 490 (1921) (applying state sovereign immunity to admiralty proceedings); Smith v. Reeves, 178 U.S. 436 (1900) (applying state sovereign immunity to suits by federal corporations); Hans v. Louisiana, 134 U.S. 1 (1890) (applying state sovereign immunity to suits by a State's own citizens under federal-question jurisdiction). Adhering to that well-reasoned precedent, see Part II, supra, we must determine whether the sovereign immunity embedded in our constitutional structure and retained by the States when they joined the Union extends to FMC adjudicative proceedings. A "[L]ook[ing] first to evidence of the original understanding of the Constitution," Alden, 527 U. S., at 741, as well as *755 early congressional practice, see id., at 743-744, we find a relatively barren historical record, from which the parties draw radically different conclusions. Petitioner FMC, for instance, argues that state sovereign immunity should not extend to administrative adjudications because "[t]here is no evidence that state immunity from the adjudication of complaints by executive officers was an established principle at the time of the adoption of the Constitution." Brief for Petitioner 28 (emphasis in original). The SCSPA, on the other hand, asserts that it is more relevant that "Congress did not attempt to subject the States to private suits before federal administrative tribunals" during the early days of our Republic. Brief for Respondent SCSPA 19. In truth, the relevant history does not provide direct guidance for our inquiry. The Framers, who envisioned a limited Federal Government, could not have anticipated the vast growth of the administrative state. See Alden, supra, at 807 (Souter, J., dissenting) ("The proliferation of Government, State and Federal, would amaze the Framers, and the administrative state with its reams of regulations would leave them rubbing their eyes"). Because formalized administrative adjudications were all but unheard of in the late 18th century and early 19th century, the dearth of specific evidence indicating whether the Framers believed that the States' sovereign immunity would apply in such proceedings is unsurprising. This Court, however, has applied a presumption—first explicitly stated in Hans v. Louisiana, supra —that the Constitution was not intended to "rais[e] up" any proceedings against the States that were "anomalous and unheard of when the Constitution was adopted." Id., at 18. We therefore attribute great significance to the fact that States were not subject to private suits in administrative adjudications at the time of the founding or for many years thereafter. For instance, while the United States asserts that "state entities have long been subject to similar administrative *756 enforcement proceedings," Reply Brief for United States 12, the earliest example it provides did not occur until 1918, see id., at 14 (citing California Canneries Co. v. Southern Pacific Co., 51 I. C. C. 500 (1918)). B To decide whether the Hans presumption applies here, however, we must examine FMC adjudications to determine whether they are the type of proceedings from which the Framers would have thought the States possessed immunity when they agreed to enter the Union. In another case asking whether an immunity present in the judicial context also applied to administrative adjudications, this Court considered whether ALJs share the same absolute immunity from suit as do Article III judges. See Butz v. Economou, 438 U.S. 478 (1978). Examining in that case the duties performed by an ALJ, this Court observed: "There can be little doubt that the role of the modern federal hearing examiner or administrative law judge. . . is `functionally comparable' to that of a judge. His powers are often, if not generally, comparable to those of a trial judge: He may issue subpoenas, rule on proffers of evidence, regulate the course of the hearing, and make or recommend decisions. More importantly, the process of agency adjudication is currently structured so as to assure that the hearing examiner exercises his independent judgment on the evidence before him, free from pressures by the parties or other officials within the agency." Id., at 513 (citation omitted). Beyond the similarities between the role of an ALJ and that of a trial judge, this Court also noted the numerous common features shared by administrative adjudications and judicial proceedings: "[F]ederal administrative law requires that agency adjudication contain many of the same safeguards as are *757 available in the judicial process. The proceedings are adversary in nature. They are conducted before a trier of fact insulated from political influence. A party is entitled to present his case by oral or documentary evidence, and the transcript of testimony and exhibits together with the pleadings constitute the exclusive record for decision. The parties are entitled to know the findings and conclusions on all of the issues of fact, law, or discretion presented on the record." Ibid. (citations omitted). This Court therefore concluded in Butz that ALJs were "entitled to absolute immunity from damages liability for their judicial acts." Id., at 514. Turning to FMC adjudications specifically, neither the Commission nor the United States disputes the Court of Appeals' characterization below that such a proceeding "walks, talks, and squawks very much like a lawsuit." 243 F.3d, at 174. Nor do they deny that the similarities identified in Butz between administrative adjudications and trial court proceedings are present here. See 46 CFR § 502.142 (2001). A review of the FMC's Rules of Practice and Procedure confirms that FMC administrative proceedings bear a remarkably strong resemblance to civil litigation in federal courts. For example, the FMC's Rules governing pleadings are quite similar to those found in the Federal Rules of Civil Procedure. A case is commenced by the filing of a complaint. See 46 CFR § 502.61 (2001); Fed. Rule Civ. Proc. 3. The defendant then must file an answer, generally within 20 days of the date of service of the complaint, see § 502.64(a); Rule 12(a)(1), and may also file a motion to dismiss, see § 502.227(b)(1); Rule 12(b). A defendant is also allowed to file counterclaims against the plaintiff. See § 502.64(d); Rule 13. If a defendant fails to respond to a complaint, default judgment may be entered on behalf of the plaintiff. See § 502.64(b); Rule 55. Intervention is also allowed. See § 502.72; Rule 24. *758 Likewise, discovery in FMC adjudications largely mirrors discovery in federal civil litigation. See 46 U.S. C. App. § 1711(a)(1) (1994 ed.) (instructing that in FMC adjudicatory proceedings "discovery procedures . . . , to the extent practicable, shall be in conformity with the rules applicable in civil proceedings in the district courts of the United States"). In both types of proceedings, parties may conduct depositions, see, e. g., 46 CFR § 502.202 (2001); Fed. Rule Civ. Proc. 28, which are governed by similar requirements. Compare §§ 502.202, 502.203, and 502.204, with Rules 28, 29, 30, and 31. Parties may also discover evidence by: (1) serving written interrogatories, see § 502.205; Rule 33; (2) requesting that another party either produce documents, see § 502.206(a)(1); Rule 34(a)(1), or allow entry on that party's property for the purpose of inspecting the property or designated objects thereon, § 502.206(a)(2); Rule 34(a)(2); and (3) submitting requests for admissions, § 502.207; Rule 36. And a party failing to obey discovery orders in either type of proceeding is subject to a variety of sanctions, including the entry of default judgment. See § 502.210(a); Rule 37(b)(2). Not only are discovery procedures virtually indistinguishable, but the role of the ALJ, the impartial officer[9] designated to hear a case, see § 502.147, is similar to that of an Article III judge. An ALJ has the authority to "arrange and give notice of hearing." Ibid. At that hearing, he may "prescribe the order in which evidence shall be presented; dispose of procedural requests or similar matters; hear and rule upon motions; administer oaths and affirmations; examine witnesses; direct witnesses to testify or produce evidence available to them which will aid in the determination of any question of fact in issue; rule *759 upon offers of proof . . . and dispose of any other matter that normally and properly arises in the course of proceedings." Ibid. The ALJ also fixes "the time and manner of filing briefs," § 502.221(a), which contain findings of fact as well as legal argument, see § 502.221(d)(1). After the submission of these briefs, the ALJ issues a decision that includes "a statement of findings and conclusions, as well as the reasons or basis there for, upon all the material issues presented on the record, and the appropriate rule, order, section, relief, or denial thereof." § 502.223. Such relief may include an order directing the payment of reparations to an aggrieved party. See 46 U.S. C. App. § 1710(g) (1994 ed., Supp. V); 46 CFR § 502.251 (2001). The ALJ's ruling subsequently becomes the final decision of the FMC unless a party, by filing exceptions, appeals to the Commission or the Commission decides to review the ALJ's decision "on its own initiative." § 502.227(a)(3). In cases where a complainant obtains reparations, an ALJ may also require the losing party to pay the prevailing party's attorney's fees. See 46 U.S. C. App. § 1710(g); 46 CFR § 502.254 (2001). In short, the similarities between FMC proceedings and civil litigation are overwhelming. In fact, to the extent that situations arise in the course of FMC adjudications "which are not covered by a specific Commission rule," the FMC's own Rules of Practice and Procedure specifically provide that "the Federal Rules of Civil Procedure will be followed to the extent that they are consistent with sound administrative practice."[10] § 502.12. *760 C The preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities. See In re Ayers, 123 U.S. 443, 505 (1887). "The founding generation thought it `neither becoming nor convenient that the several States of the Union, invested with that large residuum of sovereignty which had not been delegated to the United States, should be summoned as defendants to answer the complaints of private persons.' " Alden, 527 U. S., at 748 (quoting In re Ayers, supra, at 505). Given both this interest in protecting States' dignity and the strong similarities between FMC proceedings and civil litigation, we hold that state sovereign immunity bars the FMC from adjudicating complaints filed by a private party against a nonconsenting State. Simply put, if the Framers thought it an impermissible affront to a State's dignity to be required to answer the complaints of private parties in federal courts, we cannot imagine that they would have found it acceptable to compel a State to do exactly the same thing before the administrative tribunal of an agency, such as the FMC. Cf. Alden, supra, at 749 ("Private suits against nonconsenting States . . . present `the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties,' regardless of the forum " (quoting In re Ayers, supra, at 505) (citations omitted; emphasis added)). The affront to a State's dignity does not lessen when an adjudication takes place in an administrative tribunal as opposed to an Article III court.[11] In both instances, a State is required to defend itself in an adversarial proceeding *761 against a private party before an impartial federal officer.[12] Moreover, it would be quite strange to prohibit Congress from exercising its Article I powers to abrogate state sovereign immunity in Article III judicial proceedings, see Seminole Tribe, 517 U. S., at 72, but permit the use of those same Article I powers to create court-like administrative tribunals where sovereign immunity does not apply.[13] D The United States suggests two reasons why we should distinguish FMC administrative adjudications from judicial proceedings for purposes of state sovereign immunity. Both of these arguments are unavailing. 1 The United States first contends that sovereign immunity should not apply to FMC adjudications because the Commission's orders are not self-executing. See Brief for United States 18-21. Whereas a court may enforce a judgment through the exercise of its contempt power, the FMC cannot enforce its own orders. Rather, the Commission's orders *762 can only be enforced by a federal district court. See, e. g., 46 U.S. C. App. § 1712(e) (1994 ed.) (enforcement of civil penalties); §§ 1713(c) and (d) (enforcement of nonreparation and reparation orders). The United States presents a valid distinction between the authority possessed by the FMC and that of a court. For purposes of this case, however, it is a distinction without a meaningful difference. To the extent that the United States highlights this fact in order to suggest that a party alleged to have violated the Shipping Act is not coerced to participate in FMC proceedings, it is mistaken. The relevant statutory scheme makes it quite clear that, absent sovereign immunity, States would effectively be required to defend themselves against private parties in front of the FMC. A State seeking to contest the merits of a complaint filed against it by a private party must defend itself in front of the FMC or substantially compromise its ability to defend itself at all. For example, once the FMC issues a nonreparation order, and either the Attorney General or the injured private party seeks enforcement of that order in a federal district court,[14] the sanctioned party is not permitted to litigate the merits of its position in that court. See § 1713(c) (limiting district court review to whether the relevant order "was properly made and duly issued"). Moreover, if a party fails to appear before the FMC, it may not then argue the merits of its position in an appeal of the Commission's determination filed under 28 U.S. C. § 2342(3)(B)(iv). See United States v. L. A. Tucker Truck Lines, Inc., 344 U.S. 33, 37 (1952) ("Simple fairness to those who are engaged in the tasks of administration, and to litigants, requires as a general rule that courts should not topple over administrative decisions unless the administrative body not only has erred but *763 has erred against objection made at the time appropriate under its practice"). Should a party choose to ignore an order issued by the FMC, the Commission may impose monetary penalties for each day of noncompliance. See 46 U.S. C. App. § 1712(a) (1994 ed., Supp. V). The Commission may then request that the Attorney General of the United States seek to recover the amount assessed by the Commission in federal district court, see § 1712(e) (1994 ed.), and a State's sovereign immunity would not extend to that action, as it is one brought by the United States. Furthermore, once the FMC issues an order assessing a civil penalty, a sanctioned party may not later contest the merits of that order in an enforcement action brought by the Attorney General in federal district court. See ibid. (limiting review to whether the assessment of the civil penalty was "regularly made and duly issued"); United States v. Interlink Systems, Inc., 984 F.2d 79, 83 (CA2 1993) (holding that review of whether an order was "regularly made and duly issued" does not include review of the merits of the FMC's order). Thus, any party, including a State, charged in a complaint by a private party with violating the Shipping Act is faced with the following options: appear before the Commission in a bid to persuade the FMC of the strength of its position or stand defenseless once enforcement of the Commission's nonreparation order or assessment of civil penalties is sought in federal district court.[15] To conclude that this choice does *764 not coerce a State to participate in an FMC adjudication would be to blind ourselves to reality.[16] The United States and Justice Breyer maintain that any such coercion to participate in FMC proceedings is permissible because the States have consented to actions brought by the Federal Government. See Alden, 527 U. S., at 755-756 ("In ratifying the Constitution, the States consented to suits brought by . . . the Federal Government"). The Attorney General's decision to bring an enforcement action against a State after the conclusion of the Commission's proceedings, however, does not retroactively convert an FMC adjudication initiated and pursued by a private party into one initiated and pursued by the Federal Government. The prosecution of a complaint filed by a private party with the FMC is plainly not controlled by the United States, but rather is controlled by that private party; the only duty assumed by the FMC, and hence the United States, in conjunction with a private complaint is to assess its merits in an impartial manner. Indeed, the FMC does not even have the discretion to refuse to adjudicate complaints brought by private parties. See, e. g., 243 F. 3d, at 176 ("The FMC had no choice but to adjudicate this dispute"). As a result, the United States plainly does not "exercise . . . political responsibility" for such complaints, but instead has impermissibly effected "a broad delegation to private persons to sue nonconsenting States."[17]Alden, supra, at 756. *765 2 The United States next suggests that sovereign immunity should not apply to FMC proceedings because they do not present the same threat to the financial integrity of States as do private judicial suits. See Brief for United States 21. The Government highlights the fact that, in contrast to a nonreparation order, for which the Attorney General may seek enforcement at the request of the Commission, a reparation order may be enforced in a United States district court only in an action brought by the private party to whom the award was made. See 46 U.S. C. App. § 1713(d)(1). The United States then points out that a State's sovereign immunity would extend to such a suit brought by a private party. Brief for United States 21. This argument, however, reflects a fundamental misunderstanding of the purposes of sovereign immunity. While state sovereign immunity serves the important function of shielding state treasuries and thus preserving "the States' ability to govern in accordance with the will of their citizens," Alden, supra, at 750-751, the doctrine's central purpose is to "accord the States the respect owed them as" joint sovereigns. See Puerto Rico Aqueduct and Sewer Authority v. Metcalf & Eddy, Inc., 506 U.S. 139, 146 (1993); see Part III-C, supra. It is for this reason, for instance, that sovereign immunity applies regardless of whether a private plaintiff's suit is for monetary damages or some other type of relief. See Seminole Tribe, 517 U. S., at 58 ("[W]e have often made it clear that the relief sought by a plaintiff suing *766 a State is irrelevant to the question whether the suit is barred by the Eleventh Amendment"). Sovereign immunity does not merely constitute a defense to monetary liability or even to all types of liability. Rather, it provides an immunity from suit. The statutory scheme, as interpreted by the United States, is thus no more permissible than if Congress had allowed private parties to sue States in federal court for violations of the Shipping Act but precluded a court from awarding them any relief. It is also worth noting that an FMC order that a State pay reparations to a private party may very well result in the withdrawal of funds from that State's treasury. A State subject to such an order at the conclusion of an FMC adjudicatory proceeding would either have to make the required payment to the injured private party or stand in violation of the Commission's order. If the State were willfully and knowingly to choose noncompliance, the Commission could assess a civil penalty of up to $25,000 a day against the State. See 46 U.S. C. App. § 1712(a) (1994 ed., Supp. V). And if the State then refused to pay that penalty, the Attorney General, at the request of the Commission, could seek to recover that amount in a federal district court; because that action would be one brought by the Federal Government, the State's sovereign immunity would not extend to it. To be sure, the United States suggests that the FMC's statutory authority to impose civil penalties for violations of reparation orders is "doubtful." Reply Brief for United States 7. The relevant statutory provisions, however, appear on their face to confer such authority. For while reparation orders and nonreparation orders are distinguished in other parts of the statutory scheme, see, e. g., 46 U.S. C. App. §§ 1713(c) and (d) (1994 ed.), the provision addressing civil penalties makes no such distinction. See § 1712(a) (1994 ed., Supp. V) ("Whoever violates . . . a Commission order is liable to the United States for a civil penalty"). The United *767 States, moreover, does not even dispute that the FMC could impose a civil penalty on a State for failing to obey a nonreparation order, which, if enforced by the Attorney General, would also result in a levy upon that State's treasury. IV Two final arguments raised by the FMC and the United States remain to be addressed. Each is answered in part by reference to our decision in Seminole Tribe. A The FMC maintains that sovereign immunity should not bar the Commission from adjudicating Maritime Services' complaint because "[t]he constitutional necessity of uniformity in the regulation of maritime commerce limits the States' sovereignty with respect to the Federal Government's authority to regulate that commerce." Brief for Petitioner 29. This Court, however, has already held that the States' sovereign immunity extends to cases concerning maritime commerce. See, e. g., Ex parte New York, 256 U.S. 490 (1921). Moreover, Seminole Tribe precludes us from creating a new "maritime commerce" exception to state sovereign immunity. Although the Federal Government undoubtedly possesses an important interest in regulating maritime commerce, see U. S. Const., Art. I, § 8, cl. 3, we noted in Seminole Tribe that "the background principle of state sovereign immunity embodied in the Eleventh Amendment is not so ephemeral as to dissipate when the subject of the suit is an area . . . that is under the exclusive control of the Federal Government," [18] 517 U. S., at 72. Thus, "[e]ven when the Constitution *768 vests in Congress complete lawmaking authority over a particular area, the Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting States." Ibid. Of course, the Federal Government retains ample means of ensuring that state-run ports comply with the Shipping Act and other valid federal rules governing ocean-borne commerce. The FMC, for example, remains free to investigate alleged violations of the Shipping Act, either upon its own initiative or upon information supplied by a private party, see, e. g., 46 CFR § 502.282 (2001), and to institute its own administrative proceeding against a staterun port, see 46 U.S. C. App. § 1710(c) (1994 ed.); 46 CFR § 502.61(a) (2001). Additionally, the Commission "may bring suit in a district court of the United States to enjoin conduct in violation of [the Act]." 46 U.S. C. App. § 1710(h)(1).[19] Indeed, the United States has advised us that the Court of Appeals' ruling below "should have little practical effect on the FMC's enforcement of the Shipping Act," Brief for United States in Opposition 20, and we have no reason to believe that our decision to affirm that judgment will lead to the parade of horribles envisioned by the FMC. B Finally, the United States maintains that even if sovereign immunity were to bar the FMC from adjudicating a private *769 party's complaint against a state-run port for purposes of issuing a reparation order, the FMC should not be precluded from considering a private party's request for other forms of relief, such as a cease-and-desist order. See Brief for United States 32-34. As we have previously noted, however, the primary function of sovereign immunity is not to protect state treasuries, see Part III-C, supra, but to afford the States the dignity and respect due sovereign entities. As a result, we explained in Seminole Tribe that "the relief sought by a plaintiff suing a State is irrelevant to the question whether the suit is barred by the Eleventh Amendment." 517 U.S., at 58. We see no reason why a different principle should apply in the realm of administrative adjudications. * * * While some might complain that our system of dual sovereignty is not a model of administrative convenience, see, e. g., post, at 785-786 (Breyer, J., dissenting), that is not its purpose. Rather, "[t]he `constitutionally mandated balance of power' between the States and the Federal Government was adopted by the Framers to ensure the protection of `our fundamental liberties.' " Atascadero State Hospital v. Scanlon, 473 U.S. 234, 242 (1985) (quoting Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 572 (1985) (Powell, J., dissenting)). By guarding against encroachments by the Federal Government on fundamental aspects of state sovereignty, such as sovereign immunity, we strive to maintain the balance of power embodied in our Constitution and thus to "reduce the risk of tyranny and abuse from either front." Gregory v. Ashcroft, 501 U. S., at 458. Although the Framers likely did not envision the intrusion on state sovereignty at issue in today's case, we are nonetheless confident that it is contrary to their constitutional design, and therefore affirm the judgment of the Court of Appeals. It is so ordered.

This case presents the question whether state sovereign immunity precludes petitioner Federal Maritime Commission (FMC or Commission) from adjudicating a private party's complaint that a state-run port has violated the Shipping Act of 1984, 46 U.S. C. App. 1701 et seq. (1994 ed. and Supp. V). We hold that state sovereign immunity bars such an adjudicative proceedin I On five occasions, South Carolina Maritime Services, Inc. (Maritime Services), asked respondent South Carolina State Ports Authority (SCSPA) for permission to berth a cruise ship, the M/V Tropic Sea, at the SCSPA's port facilities in Charleston, South Carolina. Maritime Services intended to offer cruises on the M/V Tropic Sea originating from the Port of Charleston. Some of these cruises would stop in the Bahamas while others would merely travel in international waters before returning to Charleston with no intervening ports of call. On all of these trips, passengers would be permitted to participate in gambling activities while on board. The SCSPA repeatedly denied Maritime Services' requests, contending that it had an established policy of denying berths in the Port of Charleston to vessels whose primary purpose was gamblin As a result, Maritime Services *748 filed a complaint with the FMC,[1] contending that the SCSPA's refusal to provide berthing space to the M/V Tropic Sea violated the Shipping Act. Maritime Services alleged in its complaint that the SCSPA had implemented its antigambling policy in a discriminatory fashion by providing berthing space in Charleston to two Carnival Cruise Lines vessels even though Carnival offered gambling activities on these ships. Maritime Services therefore complained that the SCSPA had unduly and unreasonably preferred Carnival over Maritime Services in violation of 46 U.S. C. App. 1709(d)(4) (1994 ed., Supp. V),[2] and unreasonably refused to deal or negotiate with Maritime Services in violation of 1709(b)(10).[3] App. 14-15. It further alleged that the SCSPA's unlawful actions had inflicted upon Maritime Services a "loss of profits, loss of earnings, loss of sales, and loss of business opportunities." To remedy its injuries, Maritime Services prayed that the FMC: (1) seek a temporary restraining order and preliminary injunction in the United States District Court for the District of South Carolina "enjoining [the SCSPA] from utilizing its discriminatory practice to refuse to provide berthing space and passenger services to Maritime Services;"[4]*749 (2) direct the SCSPA to pay reparations to Maritime Services as well as interest and reasonable attorneys' fees;[5] (3) issue an order commanding, among other things, the SCSPA to cease and desist from violating the Shipping Act; and (4) award Maritime Services "such other and further relief as is just and proper." Consistent with the FMC's Rules of Practice and Procedure, Maritime Services' complaint was referred to an Administrative Law Judge (ALJ). See 46 CFR 502.223 The SCSPA then filed an answer, maintaining, inter alia, that it had adhered to its antigambling policy in a nondiscriminatory manner. It also filed a motion to dismiss, asserting, as relevant, that the SCSPA, as an arm of the State of South Carolina, was "entitled to Eleventh Amendment immunity" from Maritime Services' suit. App. 41. The SCSPA argued that "the Constitution prohibits Congress from passing a statute authorizing Maritime Services to file [this] Complaint before the Commission and, thereby, sue the State of South Carolina for damages and injunctive relief." The ALJ agreed, concluding that recent decisions of this Court "interpreting the 11th Amendment and State sovereign immunity from private suits require[d] that [Maritime Services'] complaint be dismissed." App. to Pet. for Cert. 49a (emphasis in original). Relying on Seminole of in which we held that Congress, pursuant to its Article I powers, cannot abrogate *750 state sovereign immunity, the ALJ reasoned that "[i]f federal courts that are established under Article I of the Constitution must respect States' 11th Amendment immunity and Congress is powerless to override the States' immunity under Article I of the Constitution, it is irrational to argue that an agency like the Commission, created under an Article I statute, is free to disregard the 11th Amendment or its related doctrine of State immunity from private suits." App. to Pet. for Cert. 59a (emphasis in original). The ALJ noted, however, that his decision did not deprive the FMC of its "authority to look into [Maritime Services'] allegations of Shipping Act violations and enforce the Shipping Act." at 60a. For example, the FMC could institute its own formal investigatory proceeding, see 46 CFR 502.282 or refer Maritime Services' allegations to its Bureau of Enforcement, App. to Pet. for Cert. 60a-61a. While Maritime Services did not appeal the ALJ's dismissal of its complaint, the FMC on its own motion decided to review the ALJ's ruling to consider whether state sovereign immunity from private suits extends to proceedings before the Commission. at 29a-30a. It concluded that "[t]he doctrine of state sovereign immunity is meant to cover proceedings before judicial tribunals, whether Federal or state, not executive branch administrative agencies like the Commission." at 33a. As a result, the FMC held that sovereign immunity did not bar the Commission from adjudicating private complaints against state-run ports and reversed the ALJ's decision dismissing Maritime Services' complaint. at 35a. The SCSPA filed a petition for review, and the United States Court of Appeals for the Fourth Circuit reversed. Observing that "any proceeding where a federal officer adjudicates disputes between private parties and unconsenting states would not have passed muster at the time of the Constitution's passage nor after the ratification of the Eleventh Amendment," the Court of Appeals reasoned that "[s]uch an *751 adjudication is equally as invalid today, whether the forum be a state court, a federal court, or a federal administrative agency." Reviewing the "precise nature" of the procedures employed by the FMC for resolving private complaints, the Court of Appeals concluded that the proceeding "walks, talks, and squawks very much like a lawsuit" and that "[i]ts placement within the Executive Branch cannot blind us to the fact that the proceeding is truly an adjudication." The Court of Appeals therefore held that because the SCSPA is an arm of the State of South Carolina,[6] sovereign immunity precluded the FMC from adjudicating Maritime Services' complaint, and remanded the case with instructions that it be dismissed. We granted the FMC's petition for certiorari, and now affirm. Dual sovereignty is a defining feature of our Nation's constitutional blueprint. See States, upon ratification of the Constitution, did not consent to become mere appendages of the Federal Government. Rather, they entered the Union "with their sovereignty intact." An integral component of that "residuary and inviolable sovereignty," The Federalist No. 39, p. 245 (C. Rossiter ed. 1961) (J. Madison), retained by *752 the States is their immunity from private suits. Reflecting the widespread understanding at the time the Constitution was drafted, Alexander Hamilton explained: "It is inherent in the nature of sovereignty not to be amenable to the suit of an individual without its consent. This is the general sense and the general practice of mankind; and the exemption, as one of the attributes of sovereignty, is now enjoyed by the government of every State of the Union. Unless, therefore, there is a surrender of this immunity in the plan of the convention, it will remain with the States" No. 81, at 487-488 (emphasis in original). States, in ratifying the Constitution, did surrender a portion of their inherent immunity by consenting to suits brought by sister States or by the Federal Government. See Nevertheless, the Convention did not disturb States' immunity from private suits, thus firmly enshrining this principle in our constitutional framework. "The leading advocates of the Constitution assured the people in no uncertain terms that the Constitution would not strip the States of sovereign immunity." The States' sovereign immunity, however, fell into peril in the early days of our Nation's history when this Court held in that Article I authorized citizens of one State to sue another State in federal court. The "decision `fell upon the country with a profound shock.' " In order to overturn Chisholm, Congress quickly passed the Eleventh Amendment and the States ratified it speedily. The Amendment clarified that "[t]he Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, *753 or by Citizens or Subjects of any Foreign State." We have since acknowledged that the Chisholm decision was erroneous. See, e. -722. Instead of explicitly memorializing the full breadth of the sovereign immunity retained by the States when the Constitution was ratified, Congress chose in the text of the Eleventh Amendment only to "address the specific provisions of the Constitution that had raised concerns during the ratification debates and formed the basis of the Chisholm decision." As a result, the Eleventh Amendment does not define the scope of the States' sovereign immunity; it is but one particular exemplification of that immunity. Cf. at I We now consider whether the sovereign immunity enjoyed by States as part of our constitutional framework applies to adjudications conducted by the FMC. Petitioner FMC and respondent United States[7] initially maintain that the Court of Appeals erred because sovereign immunity only shields States from exercises of "judicial power" and FMC adjudications are not judicial proceedings. As support for their position, they point to the text of the Eleventh Amendment and contend that "[t]he Amendment's reference to `judicial Power' and to `any suit in law or equity' clearly mark it as an immunity from judicial process." Brief for United States 15. *754 For purposes of this case, we will assume, arguendo, that in adjudicating complaints filed by private parties under the Shipping Act, the FMC does not exercise the judicial power of the United States. Such an assumption, however, does not end our inquiry as this Court has repeatedly held that the sovereign immunity enjoyed by the States extends beyond the literal text of the Eleventh Amendment.[8] See, e. ; ; Principality of ; Ex parte New York, ; ; Adhering to that well-reasoned precedent, see Part we must determine whether the sovereign immunity embedded in our constitutional structure and retained by the States when they joined the Union extends to FMC adjudicative proceedings. A "[L]ook[ing] first to evidence of the original understanding of the Constitution," as well as * early congressional practice, see we find a relatively barren historical record, from which the parties draw radically different conclusions. Petitioner FMC, for instance, argues that state sovereign immunity should not extend to administrative adjudications because "[t]here is no evidence that state immunity from the adjudication of complaints by executive officers was an established principle at the time of the adoption of the Constitution." Brief for Petitioner 28 (emphasis in original). The SCSPA, on the other hand, asserts that it is more relevant that "Congress did not attempt to subject the States to private suits before federal administrative tribunals" during the early days of our Republic. Brief for Respondent SCSPA 19. In truth, the relevant history does not provide direct guidance for our inquiry. The Framers, who envisioned a limited Federal Government, could not have anticipated the vast growth of the administrative state. See ("The proliferation of Government, State and Federal, would amaze the Framers, and the administrative state with its reams of regulations would leave them rubbing their eyes"). Because formalized administrative adjudications were all but unheard of in the late 18th century and early 19th century, the dearth of specific evidence indicating whether the Framers believed that the States' sovereign immunity would apply in such proceedings is unsurprisin This Court, however, has applied a presumption—first explicitly stated in —that the Constitution was not intended to "rais[e] up" any proceedings against the States that were "anomalous and unheard of when the Constitution was adopted." We therefore attribute great significance to the fact that States were not subject to private suits in administrative adjudications at the time of the founding or for many years thereafter. For instance, while the United States asserts that "state entities have long been subject to similar administrative *756 enforcement proceedings," Reply Brief for United States 12, the earliest example it provides did not occur until 1918, see at 14 (citing California Canneries Co. v. Southern Pacific Co., 51 I. C. C. 500 (1918)). B To decide whether the Hans presumption applies here, however, we must examine FMC adjudications to determine whether they are the type of proceedings from which the Framers would have thought the States possessed immunity when they agreed to enter the Union. In another case asking whether an immunity present in the judicial context also applied to administrative adjudications, this Court considered whether ALJs share the same absolute immunity from suit as do Article I judges. See Examining in that case the duties performed by an ALJ, this Court observed: "There can be little doubt that the role of the modern federal hearing examiner or administrative law judge. is `functionally comparable' to that of a judge. His powers are often, if not generally, comparable to those of a trial judge: He may issue subpoenas, rule on proffers of evidence, regulate the course of the hearing, and make or recommend decisions. More importantly, the process of agency adjudication is currently structured so as to assure that the hearing examiner exercises his independent judgment on the evidence before him, free from pressures by the parties or other officials within the agency." Beyond the similarities between the role of an ALJ and that of a trial judge, this Court also noted the numerous common features shared by administrative adjudications and judicial proceedings: "[F]ederal administrative law requires that agency adjudication contain many of the same safeguards as are *757 available in the judicial process. The proceedings are adversary in nature. They are conducted before a trier of fact insulated from political influence. A party is entitled to present his case by oral or documentary evidence, and the transcript of testimony and exhibits together with the pleadings constitute the exclusive record for decision. The parties are entitled to know the findings and conclusions on all of the issues of fact, law, or discretion presented on the record." This Court therefore concluded in Butz that ALJs were "entitled to absolute immunity from damages liability for their judicial acts." Turning to FMC adjudications specifically, neither the Commission nor the United States disputes the Court of Appeals' characterization below that such a proceeding "walks, talks, and squawks very much like a lawsuit." 243 F.3d, Nor do they deny that the similarities identified in Butz between administrative adjudications and trial court proceedings are present here. See 46 CFR 502.142 A review of the FMC's Rules of Practice and Procedure confirms that FMC administrative proceedings bear a remarkably strong resemblance to civil litigation in federal courts. For example, the FMC's Rules governing pleadings are quite similar to those found in the Federal Rules of Civil Procedure. A case is commenced by the filing of a complaint. See 46 CFR 502.61 ; Fed. Rule Civ. Proc. 3. The defendant then must file an answer, generally within 20 days of the date of service of the complaint, see 502.64(a); Rule 12(a)(1), and may also file a motion to dismiss, see 502.227(b)(1); Rule 12(b). A defendant is also allowed to file counterclaims against the plaintiff. See 502.64(d); Rule 13. If a defendant fails to respond to a complaint, default judgment may be entered on behalf of the plaintiff. See 502.64(b); Rule 55. Intervention is also allowed. See 502.72; Rule 24. *758 Likewise, discovery in FMC adjudications largely mirrors discovery in federal civil litigation. See 46 U.S. C. App. 1711(a)(1) (1994 ed.) (instructing that in FMC adjudicatory proceedings "discovery procedures to the extent practicable, shall be in conformity with the rules applicable in civil proceedings in the district courts of the United States"). In both types of proceedings, parties may conduct depositions, see, e. 46 CFR 502.202 ; Fed. Rule Civ. Proc. 28, which are governed by similar requirements. Compare 502.202, 502.203, and 502.204, with Rules 28, 29, 30, and 31. Parties may also discover evidence by: (1) serving written interrogatories, see 502.205; Rule 33; (2) requesting that another party either produce documents, see 502.206(a)(1); Rule 34(a)(1), or allow entry on that party's property for the purpose of inspecting the property or designated objects thereon, 502.206(a)(2); Rule 34(a)(2); and (3) submitting requests for admissions, 502.207; Rule 36. And a party failing to obey discovery orders in either type of proceeding is subject to a variety of sanctions, including the entry of default judgment. See 502.210(a); Rule (b)(2). Not only are discovery procedures virtually indistinguishable, but the role of the ALJ, the impartial officer[9] designated to hear a case, see 502.147, is similar to that of an Article I judge. An ALJ has the authority to "arrange and give notice of hearin" At that hearing, he may "prescribe the order in which evidence shall be presented; dispose of procedural requests or similar matters; hear and rule upon motions; administer oaths and affirmations; examine witnesses; direct witnesses to testify or produce evidence available to them which will aid in the determination of any question of fact in issue; rule *759 upon offers of proof and dispose of any other matter that normally and properly arises in the course of proceedings." The ALJ also fixes "the time and manner of filing briefs," 502.221(a), which contain findings of fact as well as legal argument, see 502.221(d)(1). After the submission of these briefs, the ALJ issues a decision that includes "a statement of findings and conclusions, as well as the reasons or basis there for, upon all the material issues presented on the record, and the appropriate rule, order, section, relief, or denial thereof." 502.223. Such relief may include an order directing the payment of reparations to an aggrieved party. See 46 U.S. C. App. 1710(g) (1994 ed., Supp. V); 46 CFR 502.251 The ALJ's ruling subsequently becomes the final decision of the FMC unless a party, by filing exceptions, appeals to the Commission or the Commission decides to review the ALJ's decision "on its own initiative." 502.227(a)(3). In cases where a complainant obtains reparations, an ALJ may also require the losing party to pay the prevailing party's attorney's fees. See 46 U.S. C. App. 1710(g); 46 CFR 502.254 In short, the similarities between FMC proceedings and civil litigation are overwhelmin In fact, to the extent that situations arise in the course of FMC adjudications "which are not covered by a specific Commission rule," the FMC's own Rules of Practice and Procedure specifically provide that "the Federal Rules of Civil Procedure will be followed to the extent that they are consistent with sound administrative practice."[10] 502.12. *760 C The preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities. See In re "The founding generation thought it `neither becoming nor convenient that the several States of the Union, invested with that large residuum of sovereignty which had not been delegated to the United States, should be summoned as defendants to answer the complaints of private persons.' " (quoting In re at ). Given both this interest in protecting States' dignity and the strong similarities between FMC proceedings and civil litigation, we hold that state sovereign immunity bars the FMC from adjudicating complaints filed by a private party against a nonconsenting State. Simply put, if the Framers thought it an impermissible affront to a State's dignity to be required to answer the complaints of private parties in federal courts, we cannot imagine that they would have found it acceptable to compel a State to do exactly the same thing before the administrative tribunal of an agency, such as the FMC. Cf. ("Private suits against nonconsenting States present `the indignity of subjecting a State to the coercive process of judicial tribunals at the instance of private parties,' regardless of the forum " (quoting In re at ) (citations omitted; emphasis added)). The affront to a State's dignity does not lessen when an adjudication takes place in an administrative tribunal as opposed to an Article I court.[11] In both instances, a State is required to defend itself in an adversarial proceeding *761 against a private party before an impartial federal officer.[12] Moreover, it would be quite strange to prohibit Congress from exercising its Article I powers to abrogate state sovereign immunity in Article I judicial proceedings, see Seminole but permit the use of those same Article I powers to create court-like administrative tribunals where sovereign immunity does not apply.[13] D The United States suggests two reasons why we should distinguish FMC administrative adjudications from judicial proceedings for purposes of state sovereign immunity. Both of these arguments are unavailin 1 The United States first contends that sovereign immunity should not apply to FMC adjudications because the Commission's orders are not self-executin See Brief for United States 18-21. Whereas a court may enforce a judgment through the exercise of its contempt power, the FMC cannot enforce its own orders. Rather, the Commission's orders *762 can only be enforced by a federal district court. See, e. 46 U.S. C. App. 1712(e) (1994 ed.) (enforcement of civil penalties); 1713(c) and (d) (enforcement of nonreparation and reparation orders). The United States presents a valid distinction between the authority possessed by the FMC and that of a court. For purposes of this case, however, it is a distinction without a meaningful difference. To the extent that the United States highlights this fact in order to suggest that a party alleged to have violated the Shipping Act is not coerced to participate in FMC proceedings, it is mistaken. The relevant statutory scheme makes it quite clear that, absent sovereign immunity, States would effectively be required to defend themselves against private parties in front of the FMC. A State seeking to contest the merits of a complaint filed against it by a private party must defend itself in front of the FMC or substantially compromise its ability to defend itself at all. For example, once the FMC issues a nonreparation order, and either the Attorney General or the injured private party seeks enforcement of that order in a federal district court,[14] the sanctioned party is not permitted to litigate the merits of its position in that court. See 1713(c) (limiting district court review to whether the relevant order "was properly made and duly issued"). Moreover, if a party fails to appear before the FMC, it may not then argue the merits of its position in an appeal of the Commission's determination filed under 28 U.S. C. 2342(3)(B)(iv). See United ("Simple fairness to those who are engaged in the tasks of administration, and to litigants, requires as a general rule that courts should not topple over administrative decisions unless the administrative body not only has erred but *763 has erred against objection made at the time appropriate under its practice"). Should a party choose to ignore an order issued by the FMC, the Commission may impose monetary penalties for each day of noncompliance. See 46 U.S. C. App. 1712(a) (1994 ed., Supp. V). The Commission may then request that the Attorney General of the United States seek to recover the amount assessed by the Commission in federal district court, see 1712(e) (1994 ed.), and a State's sovereign immunity would not extend to that action, as it is one brought by the United States. Furthermore, once the FMC issues an order assessing a civil penalty, a sanctioned party may not later contest the merits of that order in an enforcement action brought by the Attorney General in federal district court. See ; United Thus, any party, including a State, charged in a complaint by a private party with violating the Shipping Act is faced with the following options: appear before the Commission in a bid to persuade the FMC of the strength of its position or stand defenseless once enforcement of the Commission's nonreparation order or assessment of civil penalties is sought in federal district court.[15] To conclude that this choice does *764 not coerce a State to participate in an FMC adjudication would be to blind ourselves to reality.[16] The United States and Justice Breyer maintain that any such coercion to participate in FMC proceedings is permissible because the States have consented to actions brought by the Federal Government. See 527 U. S., at -756 The Attorney General's decision to bring an enforcement action against a State after the conclusion of the Commission's proceedings, however, does not retroactively convert an FMC adjudication initiated and pursued by a private party into one initiated and pursued by the Federal Government. The prosecution of a complaint filed by a private party with the FMC is plainly not controlled by the United States, but rather is controlled by that private party; the only duty assumed by the FMC, and hence the United States, in conjunction with a private complaint is to assess its merits in an impartial manner. Indeed, the FMC does not even have the discretion to refuse to adjudicate complaints brought by private parties. See, e. As a result, the United States plainly does not "exercise political responsibility" for such complaints, but instead has impermissibly effected "a broad delegation to private persons to sue nonconsenting States."[17], *765 2 The United States next suggests that sovereign immunity should not apply to FMC proceedings because they do not present the same threat to the financial integrity of States as do private judicial suits. See Brief for United States 21. The Government highlights the fact that, in contrast to a nonreparation order, for which the Attorney General may seek enforcement at the request of the Commission, a reparation order may be enforced in a United States district court only in an action brought by the private party to whom the award was made. See 46 U.S. C. App. 1713(d)(1). The United States then points out that a State's sovereign immunity would extend to such a suit brought by a private party. Brief for United States 21. This argument, however, reflects a fundamental misunderstanding of the purposes of sovereign immunity. While state sovereign immunity serves the important function of shielding state treasuries and thus preserving "the States' ability to govern in accordance with the will of their citizens," the doctrine's central purpose is to "accord the States the respect owed them as" joint sovereigns. See Puerto Rico Aqueduct and Sewer ; see Part I-C, It is for this reason, for instance, that sovereign immunity applies regardless of whether a private plaintiff's suit is for monetary damages or some other type of relief. See Seminole Sovereign immunity does not merely constitute a defense to monetary liability or even to all types of liability. Rather, it provides an immunity from suit. The statutory scheme, as interpreted by the United States, is thus no more permissible than if Congress had allowed private parties to sue States in federal court for violations of the Shipping Act but precluded a court from awarding them any relief. It is also worth noting that an FMC order that a State pay reparations to a private party may very well result in the withdrawal of funds from that State's treasury. A State subject to such an order at the conclusion of an FMC adjudicatory proceeding would either have to make the required payment to the injured private party or stand in violation of the Commission's order. If the State were willfully and knowingly to choose noncompliance, the Commission could assess a civil penalty of up to $25,000 a day against the State. See 46 U.S. C. App. 1712(a) (1994 ed., Supp. V). And if the State then refused to pay that penalty, the Attorney General, at the request of the Commission, could seek to recover that amount in a federal district court; because that action would be one brought by the Federal Government, the State's sovereign immunity would not extend to it. To be sure, the United States suggests that the FMC's statutory authority to impose civil penalties for violations of reparation orders is "doubtful." Reply Brief for United States 7. The relevant statutory provisions, however, appear on their face to confer such authority. For while reparation orders and nonreparation orders are distinguished in other parts of the statutory scheme, see, e. 46 U.S. C. App. 1713(c) and (d) (1994 ed.), the provision addressing civil penalties makes no such distinction. See 1712(a) (1994 ed., Supp. V) ("Whoever violates a Commission order is liable to the United States for a civil penalty"). The United *767 States, moreover, does not even dispute that the FMC could impose a civil penalty on a State for failing to obey a nonreparation order, which, if enforced by the Attorney General, would also result in a levy upon that State's treasury. IV Two final arguments raised by the FMC and the United States remain to be addressed. Each is answered in part by reference to our decision in Seminole A The FMC maintains that sovereign immunity should not bar the Commission from adjudicating Maritime Services' complaint because "[t]he constitutional necessity of uniformity in the regulation of maritime commerce limits the States' sovereignty with respect to the Federal Government's authority to regulate that commerce." Brief for Petitioner 29. This Court, however, has already held that the States' sovereign immunity extends to cases concerning maritime commerce. See, e. Ex parte New York, Moreover, Seminole precludes us from creating a new "maritime commerce" exception to state sovereign immunity. Although the Federal Government undoubtedly possesses an important interest in regulating maritime commerce, see U. S. Const., Art. I, 8, cl. 3, we noted in Seminole that "the background principle of state sovereign immunity embodied in the Eleventh Amendment is not so ephemeral as to dissipate when the subject of the suit is an area that is under the exclusive control of the Federal Government," [18] Thus, "[e]ven when the Constitution *768 vests in Congress complete lawmaking authority over a particular area, the Eleventh Amendment prevents congressional authorization of suits by private parties against unconsenting States." Of course, the Federal Government retains ample means of ensuring that state-run ports comply with the Shipping Act and other valid federal rules governing ocean-borne commerce. The FMC, for example, remains free to investigate alleged violations of the Shipping Act, either upon its own initiative or upon information supplied by a private party, see, e. 46 CFR 502.282 and to institute its own administrative proceeding against a staterun port, see 46 U.S. C. App. 1710(c) (1994 ed.); 46 CFR 502.61(a) Additionally, the Commission "may bring suit in a district court of the United States to enjoin conduct in violation of [the Act]." 46 U.S. C. App. 1710(h)(1).[19] Indeed, the United States has advised us that the Court of Appeals' ruling below "should have little practical effect on the FMC's enforcement of the Shipping Act," Brief for United States in Opposition 20, and we have no reason to believe that our decision to affirm that judgment will lead to the parade of horribles envisioned by the FMC. B Finally, the United States maintains that even if sovereign immunity were to bar the FMC from adjudicating a private *769 party's complaint against a state-run port for purposes of issuing a reparation order, the FMC should not be precluded from considering a private party's request for other forms of relief, such as a cease-and-desist order. See Brief for United States 32-34. As we have previously noted, however, the primary function of sovereign immunity is not to protect state treasuries, see Part I-C, but to afford the States the dignity and respect due sovereign entities. As a result, we explained in Seminole that "the relief sought by a plaintiff suing a State is irrelevant to the question whether the suit is barred by the Eleventh Amendment." We see no reason why a different principle should apply in the realm of administrative adjudications. * * * While some might complain that our system of dual sovereignty is not a model of administrative convenience, see, e. post, at 785-786 (Breyer, J., dissenting), that is not its purpose. Rather, "[t]he `constitutionally mandated balance of power' between the States and the Federal Government was adopted by the Framers to ensure the protection of `our fundamental liberties.' " Atascadero State ). By guarding against encroachments by the Federal Government on fundamental aspects of state sovereignty, such as sovereign immunity, we strive to maintain the balance of power embodied in our Constitution and thus to "reduce the risk of tyranny and abuse from either front." Although the Framers likely did not envision the intrusion on state sovereignty at issue in today's case, we are nonetheless confident that it is contrary to their constitutional design, and therefore affirm the judgment of the Court of Appeals. It is so ordered.

Justice Stevens

dissenting

Federal Maritime Comm'n v. South Carolina Ports Authority

2002-05-28

https://www.courtlistener.com/opinion/118511/federal-maritime-commn-v-south-carolina-ports-authority/

https://www.courtlistener.com/api/rest/v3/clusters/118511/

2001-053

Justice Breyer has explained why the Court's recent sovereign immunity jurisprudence does not support today's decision. I join his opinion without reservation, but add these words to emphasize the weakness of the two predicates for the majority's holding. Those predicates are, first, the Court's recent decision in Alden v. Maine, 527 U.S. 706 (1999), and second, the "preeminent" interest in according States the "dignity" that is their due. Ante, at 760. Justice Souter has already demonstrated that Alden' s creative "conception of state sovereign immunity . . . is true neither to history nor to the structure of the Constitution." 527 U.S., at 814 (dissenting opinion). And I have previously explained that the "dignity" rationale is "`embarrassingly insufficient,' " Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 97 (1996) (dissenting opinion; citation omitted), in part because "Chief Justice Marshall early on laid to rest the view that the purpose of the Eleventh Amendment was to protect a State's dignity," id., at 96-97 (citing Cohens v. Virginia, 6 Wheat. 264, 406-407 (1821)). This latter point is reinforced by the legislative history of the Eleventh Amendment. It is familiar learning that the Amendment was a response to this Court's decision in Chisholm v. Georgia, 2 Dall. 419 (1793). Less recognized, however, is that Chisholm necessarily decided two jurisdictional issues: that the Court had personal jurisdiction over the state defendant, and that it had subject-matter jurisdiction over the case.[1] The first proposed draft of a constitutional amendment responding to Chisholm —introduced in the House of Representatives in February 1793, on the day after Chisholm was decided—would have overruled the first *771 holding, but not the second.[2] That proposal was not adopted. Rather, a proposal introduced the following day in the Senate,[3] which was "cast in terms that we associate with subject matter jurisdiction,"[4] provided the basis for the present text of the Eleventh Amendment. This legislative history suggests that the Eleventh Amendment is best understood as having overruled Chisholm `s subject-matter jurisdiction holding, thereby restricting the federal courts' diversity jurisdiction. However, the Amendment left intact Chisholm `s personal jurisdiction holding: that the Constitution does not immunize States from a federal court's process. If the paramount concern of the Eleventh Amendment's framers had been protecting the so-called "dignity" interest of the States, surely Congress would have endorsed the first proposed amendment *772 granting the States immunity from process, rather than the later proposal that merely delineates the subjectmatter jurisdiction of courts. Moreover, as Chief Justice Marshall recognized, a subject-matter reading of the Amendment makes sense, considering the States' interest in avoiding their creditors. See Cohens v. Virginia, 6 Wheat., at 406-407. The reasons why the majority in Chisholm concluded that the "dignity" interests underlying the sovereign immunity of English Monarchs had not been inherited by the original 13 States remain valid today. See, e. g., Seminole Tribe of Fla., 517 U. S., at 95-97 (Stevens, J., dissenting). By extending the untethered "dignity" rationale to the context of routine federal administrative proceedings, today's decision is even more anachronistic than Alden.

Justice Breyer has explained why the Court's recent sovereign immunity jurisprudence does not support today's decision. I join his opinion without reservation, but add these words to emphasize the weakness of the two predicates for the majority's holding. Those predicates are, first, the Court's recent decision in and second, the "preeminent" interest in according States the "dignity" that is their due. Ante, at 760. Justice Souter has already demonstrated that Alden' s creative "conception of state sovereign immunity is true neither to history nor to the structure of the Constitution." And I have previously explained that the "dignity" rationale is "`embarrassingly insufficient,' " Seminole Tribe of in part because "Chief Justice Marshall early on laid to rest the view that the purpose of the Eleventh Amendment was to protect a State's dignity," at 96- ). This latter point is reinforced by the legislative history of the Eleventh Amendment. It is familiar learning that the Amendment was a response to this Court's decision in Less recognized, however, is that Chisholm necessarily decided two jurisdictional issues: that the Court had personal jurisdiction over the state defendant, and that it had subject-matter jurisdiction over the case.[1] The first proposed draft of a constitutional amendment responding to Chisholm —introduced in the House of Representatives in February 1793, on the day after Chisholm was decided—would have overruled the first *771 holding, but not the second.[2] That proposal was not adopted. Rather, a proposal introduced the following day in the Senate,[3] which was "cast in terms that we associate with subject matter jurisdiction,"[4] provided the basis for the present text of the Eleventh Amendment. This legislative history suggests that the Eleventh Amendment is best understood as having overruled Chisholm `s subject-matter jurisdiction holding, thereby restricting the federal courts' diversity jurisdiction. However, the Amendment left intact Chisholm `s personal jurisdiction holding: that the Constitution does not immunize States from a federal court's process. If the paramount concern of the Eleventh Amendment's framers had been protecting the so-called "dignity" interest of the States, surely Congress would have endorsed the first proposed amendment *772 granting the States immunity from process, rather than the later proposal that merely delineates the subjectmatter jurisdiction of courts. Moreover, as Chief Justice Marshall recognized, a subject-matter reading of the Amendment makes sense, considering the States' interest in avoiding their creditors. See 6 Wheat., at The reasons why the majority in Chisholm concluded that the "dignity" interests underlying the sovereign immunity of English Monarchs had not been inherited by the original 13 States remain valid today. See, e. g., Seminole Tribe of - By extending the untethered "dignity" rationale to the context of routine federal administrative proceedings, today's decision is even more anachronistic than Alden.

Justice Breyer

second_dissenting

Federal Maritime Comm'n v. South Carolina Ports Authority

2002-05-28

https://www.courtlistener.com/opinion/118511/federal-maritime-commn-v-south-carolina-ports-authority/

https://www.courtlistener.com/api/rest/v3/clusters/118511/

2001-053

The Court holds that a private person cannot bring a complaint against a State to a federal administrative agency where the agency (1) will use an internal adjudicative process to decide if the complaint is well founded, and (2) if so, proceed to court to enforce the law. Where does the Constitution contain the principle of law that the Court enunciates? I cannot find the answer to this question in any text, in any tradition, or in any relevant purpose. In saying this, I do not simply reiterate the dissenting views set forth in many of the Court's recent sovereign immunity decisions. See, e. g., Kimel v. Florida Bd. of Regents, 528 U.S. 62 (2000); Alden v. Maine, 527 U.S. 706 (1999); College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., 527 U.S. 666 (1999); Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996). For even were I to believe that those decisions properly stated the law—which I do not—I still could not accept the Court's conclusion here. *773 I At the outset one must understand the constitutional nature of the legal proceeding before us. The legal body conducting the proceeding, the Federal Maritime Commission, is an "independent" federal agency. Constitutionally speaking, an "independent" agency belongs neither to the Legislative Branch nor to the Judicial Branch of Government. Although Members of this Court have referred to agencies as a "fourth branch" of Government, FTC v. Ruberoid Co., 343 U.S. 470, 487 (1952) (Jackson, J., dissenting), the agencies, even "independent" agencies, are more appropriately considered to be part of the Executive Branch. See Freytag v. Commissioner, 501 U.S. 868, 910 (1991) (Scalia, J., concurring in part and concurring in judgment). The President appoints their chief administrators, typically a Chairman and Commissioners, subject to confirmation by the Senate. Cf. Bowsher v. Synar, 478 U.S. 714, 723 (1986). The agencies derive their legal powers from congressionally enacted statutes. And the agencies enforce those statutes, i. e., they "execute" them, in part by making rules or by adjudicating matters in dispute. Cf. Panama Refining Co. v. Ryan, 293 U.S. 388, 428-429 (1935). The Court long ago laid to rest any constitutional doubts about whether the Constitution permitted Congress to delegate rulemaking and adjudicative powers to agencies. E. g., ICC v. Cincinnati, N. O. & T. P. R. Co., 167 U.S. 479, 494-495 (1897) (permitting rulemaking); Crowell v. Benson, 285 U.S. 22, 46 (1932) (permitting adjudication); Commodity Futures Trading Comm'n v. Schor, 478 U.S. 833, 852 (1986) (same). That, in part, is because the Court established certain safeguards surrounding the exercise of these powers. See, e. g., A. L. A. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935) (nondelegation doctrine); Crowell, supra (requiring judicial review). And the Court denied that those activities as safeguarded, however much they might resemble the activities of a legislature or court, fell within the *774 scope of Article I or Article III of the Constitution. Schechter Poultry, supra, at 529-530; Crowell, supra, at 50-53; see also INS v. Chadha, 462 U.S. 919, 953, n. 16 (1983) (agency's use of rulemaking "resemble[s]," but is not, lawmaking). Consequently, in exercising those powers, the agency is engaging in an Article II, Executive Branch activity. And the powers it is exercising are powers that the Executive Branch of Government must possess if it is to enforce modern law through administration. This constitutional understanding explains why both commentators and courts have often attached the prefix "quasi" to descriptions of an agency's rulemaking or adjudicative functions. E. g., Humphrey's Executor v. United States, 295 U.S. 602, 629 (1935); 3 C. Koch, Administrative Law and Practice § 12.13 (2d ed. 1997); Shapiro, The Choice of Rulemaking or Adjudication in the Development of Administrative Policy, 78 Harv. L. Rev. 921, 954-958 (1965); Friendly, The Federal Administrative Agencies: The Need for Better Definition of Standards, 75 Harv. L. Rev. 863, 869-870 (1962). The terms "quasi legislative" and "quasi adjudicative" indicate that the agency uses legislative like or court like procedures but that it is not, constitutionally speaking, either a legislature or a court. See Whitman v. American Trucking Assns., Inc., 531 U.S. 457, 472-473 (2001); Freytag, supra, at 910 (Scalia, J., concurring in part and concurring in judgment). The case before us presents a fairly typical example of a federal administrative agency's use of agency adjudication. Congress has enacted a statute, the Shipping Act of 1984 (Act or Shipping Act), 46 U.S. C. App. § 1701 et seq. (1994 ed. and Supp. V), which, among other things, forbids marine terminal operators to discriminate against terminal users. § 1709(d)(4) (1994 ed., Supp. V). The Act grants the Federal Maritime Commission the authority to administer the Act. The law grants the Commission the authority to enforce the Act in a variety of ways, for example, by making rules and *775 regulations, § 1716 (1994 ed.), by issuing or revoking licenses, § 1718 (1994 ed., Supp. V), and by conducting investigations and issuing reports, see generally § 1710 (1994 ed. and Supp. V). It also permits a private person to file a complaint, which the Commission is to consider. § 1710(a) (1994 ed.). Interestingly enough, it does not say that the Commission must determine the merits of the complaint through agency adjudication, see § 1710(g) (1994 ed., Supp. V)—though, for present purposes, I do not see that this statutory lacuna matters. Regardless, the Federal Maritime Commission has decided to evaluate complaints through an adjudicative process. That process involves assignment to an administrative law judge, 46 CFR § 502.146(a) (2001), a hearing, an initial decision, §§ 502.147, 502.223, Commission review, and a final Commission decision, § 502.227, followed by federal appellate court review, 28 U.S. C. § 2342(3)(B). The initial hearing, like a typical court hearing, involves a neutral decisionmaker, an opportunity to present a case or defense through oral or documentary evidence, a right to cross-examination, and a written record that typically constitutes the basis for decision. 46 CFR § 502.154 (2001). But unlike a typical court proceeding, the agency process also may involve considerable hearsay, resolution of factual disputes through the use of "official notice," § 502.156; see also 5 U.S. C. § 556, and final decisionmaking by a Commission that remains free to disregard the initial decision and decide the matter on its own—indeed through the application of substantive as well as procedural rules, that it, the Commission, itself has created. See 46 CFR §§ 502.226, 502.227, 502.230 (2001); see also 46 U.S. C. App. § 1716 (1994 ed.) (rulemaking authority); 46 CFR §§ 502.51-502.56 (2001) (same). The outcome of this process is often a Commission order, say, an order that tells a party to cease and desist from certain activity or that tells one party to pay money damages (called "reparations") to another. The Commission cannot *776 itself enforce such an order. See 46 U.S. C. App. § 1712(e). Rather, the Shipping Act says that, to obtain enforcement of an order providing for money damages, the private party beneficiary of the order must obtain a court order. § 1713(d). It adds that, to obtain enforcement of other commission orders, either the private party or the Attorney General must go to court. § 1713(c). It also permits the Commission to seek a court injunction prohibiting any person from violating the Shipping Act. § 1710(g) (1994 ed., Supp. V). And it authorizes the Commission to assess civil penalties (payable to the United States) against a person who fails to obey a Commission order; but to collect the penalties, the Commission, again, must go to court. §§ 1712(a), (c) (1994 ed. and Supp. V). The upshot is that this case involves a typical Executive Branch agency exercising typical Executive Branch powers seeking to determine whether a particular person has violated federal law. Cf. 2 K. Davis & R. Pierce, Administrative Law Treatise 37-38 (1994) (describing typical agency characteristics); cf. also SEC v. Chenery Corp., 332 U.S. 194 (1947). The particular person in this instance is a state entity, the South Carolina State Ports Authority, and the agency is acting in response to the request of a private individual. But at first blush it is difficult to see why these special circumstances matter. After all, the Constitution created a Federal Government empowered to enact laws that would bind the States and it empowered that Federal Government to enforce those laws against the States. See Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 160 (1920). It also left private individuals perfectly free to complain to the Federal Government about unlawful state activity, and it left the Federal Government free to take subsequent legal action. Where then can the Court find its constitutional principle—the principle that the Constitution forbids an Executive Branch agency to determine through ordinary adjudicative processes whether such a private complaint is *777 justified? As I have said, I cannot find that principle anywhere in the Constitution. II The Court's principle lacks any firm anchor in the Constitution's text. The Eleventh Amendment cannot help. It says: "The Judicial power of the United States shall not . . . extend to any suit . . . commenced or prosecuted against one of the . . . States by Citizens of another State." (Emphasis added.) Federal administrative agencies do not exercise the "[j]udicial power of the United States." Compare Crowell v. Benson, 285 U.S. 22 (1932) (explaining why ordinary agency adjudication, with safeguards, is not an exercise of Article III power), with Freytag v. Commissioner, 501 U. S., at 890-891 (Tax Court, a special Article I court, exercises Article III power), and Williams v. United States, 289 U.S. 553, 565-566 (1933) (same as to Court of Claims). Of course, this Court has read the words "Citizens of another State" as if they also said "citizen of the same State." Hans v. Louisiana, 134 U.S. 1 (1890). But it has never said that the words "[j]udicial power of the United States" mean "the executive power of the United States." Nor should it. The Tenth Amendment cannot help. It says: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The Constitution has "delegated to the United States" the power here in question, the power "[t]o regulate Commerce with foreign Nations, and among the several States." U. S. Const., Art. I, § 8, cl. 3; see California v. United States, 320 U.S. 577, 586 (1944). The Court finds within this delegation a hidden reservation, a reservation that, due to sovereign immunity, embodies the legal principle the Court enunciates. *778 But the text of the Tenth Amendment says nothing about any such hidden reservation, one way or the other. Indeed, the Court refers for textual support only to an earlier case, namely, Alden v. Maine, 527 U.S. 706 (1999) (holding that sovereign immunity prohibits a private citizen from suing a State in state court), and, through Alden, to the texts that Alden mentioned. These textual references include: (1) what Alexander Hamilton described as a constitutional "postulate," namely, that the States retain their immunity from "suits, without their consent," unless there has been a "surrender" of that immunity "in the plan of the convention," id., at 730 (internal quotation marks omitted); (2) what the Alden majority called "the system of federalism established by the Constitution," ibid.; and (3) what the Alden majority called "the constitutional design," id., at 731. See also id., at 760-762 (Souter, J., dissenting) (noting that the Court's opinion nowhere relied on constitutional text). Considered purely as constitutional text, these words— "constitutional design," "system of federalism," and "plan of the convention"—suffer several defects. Their language is highly abstract, making them difficult to apply. They invite differing interpretations at least as much as do the Constitution's own broad liberty-protecting phrases, such as "due process of law" or the word "liberty" itself. And compared to these latter phrases, they suffer the additional disadvantage that they do not actually appear anywhere in the Constitution. Cf. generally Harmelin v. Michigan, 501 U.S. 957, 985-986 (1991). Regardless, unless supported by considerations of history, of constitutional purpose, or of related consequence, those abstract phrases cannot support today's result. III Conceding that its conception of sovereign immunity is ungrounded in the Constitution's text, see ante, at 751-753, 767-768, n. 18, the Court attempts to support its holding with history. But this effort is similarly destined to fail, because *779 the very history to which the majority turned in Alden here argues against the Court's basic analogy—between a federal administrative proceeding triggered by a private citizen and a private citizen's lawsuit against a State. In Alden the Court said that feudal law had created an 18th-century legal norm to the effect that "`no lord could be sued by a vassal in his own court, but each petty lord was subject to suit in the courts of a higher lord.' " 527 U.S., at 741. It added that the Framers' silence about the matter had woven that feudal "norm" into the "constitutional design," i. e., had made it part of our "system of federalism" unchanged by the "`plan of the convention.' " Id., at 714-717, 730, 740-743. And that norm, said the Alden Court, by analogy forbids a citizen ("vassal") to sue a State ("lord") in the "lord's" own courts. Here that same norm argues against immunity, for the forum at issue is federal—belonging by analogy to the "higher lord." And total 18th-century silence about state immunity in Article I proceedings would argue against, not in favor of, immunity. In any event, the 18th century was not totally silent. The Framers enunciated in the "plan of the convention" the principle that the Federal Government may sue a State without its consent. See, e. g., West Virginia v. United States, 479 U.S. 305, 311 (1987). They also described in the First Amendment the right of a citizen to petition the Federal Government for a redress of grievances. See also United States v. Cruikshank, 92 U.S. 542, 552-553 (1876); cf. generally Mark, The Vestigial Constitution: The History and Significance of the Right to Petition, 66 Ford. L. Rev. 2153, 2227 (1998). The first principle applies here because only the Federal Government, not the private party, can—in light of this Court's recent sovereign immunity jurisprudence, see Seminole Tribe of Fla. v. Florida, 517 U.S. 44 (1996)—bring the ultimate court action necessary legally to force a State to comply with the relevant federal law. See id. , at 71, n. 14. The second principle applies here because *780 a private citizen has asked the Federal Government to determine whether the State has complied with federal law and, if not, to take appropriate legal action in court. Of course these two principles apply only through analogy. (The Court's decision also relies on analogy—one that jumps the separation-of-powers boundary that the Constitution establishes.) Yet the analogy seems apt. A private citizen, believing that a State has violated federal law, seeks a determination by an Executive Branch agency that he is right; the agency will make that determination through use of its own adjudicatory agency processes; and, if the State fails to comply, the Federal Government may bring an action against the State in federal court to enforce the federal law. Twentieth-century legal history reinforces the appropriateness of this description. The growth of the administrative state has led this Court to determine that administrative agencies are not Article III courts, see Crowell v. Benson, 285 U. S., at 49-53, that they have broad discretion to proceed either through agency adjudication or through rulemaking, SEC v. Chenery Corp., 332 U. S., at 203 ("[T]he choice made between proceeding by general rule or by individual, ad hoc litigation is one that lies primarily in the informed discretion of the administrative agency"), and that they may bring administrative enforcement proceedings against States. At a minimum these historically established legal principles argue strongly against any effort to analogize the present proceedings to a lawsuit brought by a private individual against a State in a state court or to an Eleventh Amendment type lawsuit brought by a private individual against a State in a federal court. This is not to say that the analogy (with a citizen petitioning for federal intervention) is, historically speaking, a perfect one. As the Court points out, the Framers may not have "anticipated the vast growth of the administrative state," and the history of their debates "does not provide direct guidance." Ante, at 755. But the Court is wrong to *781 ignore the relevance and importance of what the Framers did say. And it is doubly wrong to attach "great" legal "significance" to the absence of 18th- and 19th-century administrative agency experience. See ibid. Even if those alive in the 18th century did not "anticipat[e] the vast growth of the administrative state," ibid., they did write a Constitution designed to provide a framework for Government across the centuries, a framework that is flexible enough to meet modern needs. And we cannot read their silence about particular means as if it were an instruction to forbid their use. IV The Court argues that the basic purpose of "sovereign immunity" doctrine—namely, preservation of a State's "dignity"—requires application of that doctrine here. It rests this argument upon (1) its efforts to analogize agency proceedings to court proceedings, and (2) its claim that the agency proceedings constitute a form of "compulsion" exercised by a private individual against the State. As I have just explained, I believe its efforts to analogize agencies to courts are, constitutionally speaking, too frail to support its conclusion. Neither can its claim of "compulsion" provide the necessary support. Viewed from a purely legal perspective, the "compulsion" claim is far too weak. That is because the private individual lacks the legal authority to compel the State to comply with the law. For as I have noted, in light of the Court's recent sovereign immunity decisions, if an individual does bring suit to enforce the Commission's order, see 46 U.S. C. App. § 1713 (1994 ed.), the State would arguably be free to claim sovereign immunity. See Seminole Tribe of Fla., supra. Only the Federal Government, acting through the Commission or the Attorney General, has the authority to compel the State to act. In a typical instance, the private individual will file a complaint, the agency will adjudicate the complaint, and the *782 agency will reach a decision. The State subsequently may take the matter to court in order to obtain judicial review of any adverse agency ruling, but, if it does so, its opponent in that court proceeding is not a private party, but the agency itself. 28 U.S. C. § 2344. (And unlike some other administrative schemes, see, e. g., Verizon Md. Inc. v. Public Serv. Comm'n of Md., ante, at 651-653 (Souter, J., concurring), the Commission would not be a party in name only.) Alternatively, the State may do nothing, in which case either the Commission or the Attorney General must seek a court order compelling the State to obey. 46 U.S. C. App. §§ 1710, 1713 (1994 ed. and Supp. V). The Commission, but not a private party, may assess a penalty against the State for noncompliance, § 1712; and only a court acting at the Commission's request can compel compliance with a penalty order. In sum, no one can legally compel the State's obedience to the Shipping Act's requirements without a court order, and in no case would a court issue such an order (absent a State's voluntary waiver of sovereign immunity, see Atascadero State Hospital v. Scanlon, 473 U.S. 234, 238 (1985)) absent the request of a federal agency or other federal instrumentality. In Alden this Court distinguished for sovereign immunity purposes between (a) a lawsuit brought by the Federal Government and (b) a lawsuit brought by a private person. It held that principles of "sovereign immunity" barred suit in the latter instance but not the former, because the former— a suit by the Federal Government—"require[s] the exercise of political responsibility for each suit prosecuted against a State." 527 U.S., at 756. That same "exercise of political responsibility" must take place here in every instance prior to the issuance of an order that, from a legal perspective, will compel the State to obey. To repeat: Without a court proceeding the private individual cannot legally force the State to act, to pay, or to desist; only the Federal Government may institute a court proceeding; and, in deciding *783 whether to do so, the Federal Government will exercise appropriate political responsibility. Cf. ibid. Viewed from a practical perspective, the Court's "compulsion" claim proves far too much. Certainly, a private citizen's decision to file a complaint with the Commission can produce practical pressures upon the State to respond and eventually to comply with a Commission decision. By appearing before the Commission, the State will be able to obtain full judicial review of an adverse agency decision in a court of appeals (where it will face in opposition the Commission itself, not the private party). By appearing, the State will avoid any potential Commission-assessed monetary penalty. And by complying, it will avoid the adverse political, practical, and symbolic implications of being labeled a federal "lawbreaker." Practical pressures such as these, however, cannot sufficiently "affront" a State's "dignity" as to warrant constitutional "sovereign immunity" protections, for it is easy to imagine comparable instances of clearly lawful private citizen complaints to Government that place a State under far greater practical pressures to comply. No one doubts, for example, that a private citizen can complain to Congress, which may threaten (should the State fail to respond) to enact a new law that the State opposes. Nor does anyone deny that a private citizen, in complaining to a federal agency, may seek a rulemaking proceeding, which may lead the agency (should the State fail to respond) to enact a new agency rule that the State opposes. A private citizen may ask an agency formally to declare that a State is not in compliance with a statute or federal rule, even though from that formal declaration may flow a host of legal consequences adverse to a State's interests. See, e. g., 42 U.S. C. § 300g-3 (Environmental Protection Agency may declare that a State is in noncompliance with federal water quality regulations). And one can easily imagine a legal scheme in which a private individual files a complaint like the one before us, but asks *784 an agency staff member to investigate the matter, which investigation would lead to an order similar to the order at issue here with similar legal and practical consequences. Viewed solely in terms of practical pressures, the pressures upon a State to respond before Congress or the agency, to answer the private citizen's accusations, to oppose his requests for legally adverse agency or congressional action, would seem no less powerful than those at issue here. Once one avoids the temptation to think (mistakenly) of an agency as a court, it is difficult to see why the practical pressures at issue here would "affront" a State's "dignity" any more than those just mentioned. And if the latter create no constitutional "dignity" problem, why should the former? The Court's answer—that "[s]overeign immunity concerns are not implicated" unless the "Federal Government attempts to coerce States into answering the complaints of private parties in an adjudicative proceeding," ante, at 764, n. 16—simply begs the question of when and why States should be entitled to special constitutional protection. The Court's more direct response lies in its claim that the practical pressures here are special, arising from a set of statutes that deprive a nonresponding State of any meaningful judicial review of the agency's determinations. See ante, at 760-764. The Court does not explain just what makes this kind of pressure constitutionally special. But in any event, the Court's response is inadequate. The statutes clearly provide the State with full judicial review of the initial agency decision should the State choose to seek that review. 28 U.S. C. § 2342(3)(B)(iv). That review cannot "affront" the State's "dignity, for it takes place in a court proceeding in which the Commission, not the private party, will oppose the State. § 2344. Even were that not so, Congress could easily resolve the resulting problem by making clear that the relevant statutes authorize full judicial review in an enforcement action brought against a State. For that matter, one might interpret *785 existing statutes as permitting in such actions whatever form of judicial review the Constitution demands. Cf. Crowell v. Benson, 285 U. S., at 45-47. Statutory language that authorizes review of whether an order was "properly made and duly issued," 46 U.S. C. App. § 1713(c), does not forbid review that the Constitution requires. But even were I to make the heroic assumption (which I do not believe) that this case implicates a reviewing court's statutory inability to apply constitutionally requisite standards of judicial review, I should still conclude that the Constitution permits the agency to consider the complaint here before us. The "review standards" problem concerns the later enforceability of the agency decision, and the Court must consider any such problem later in the context of a court order granting or denying review. Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) ("`It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case' "). V The Court cannot justify today's decision in terms of its practical consequences. The decision, while permitting an agency to bring enforcement actions against States, forbids it to use agency adjudication in order to help decide whether to do so. Consequently the agency must rely more heavily upon its own informal staff investigations in order to decide whether a citizen's complaint has merit. The natural result is less agency flexibility, a larger federal bureaucracy, less fair procedure, and potentially less effective law enforcement. See Pension Benefit Guaranty Corporation v. LTV Corp., 496 U.S. 633, 654-656 (1990); cf. also Shapiro, 78 Harv. L. Rev., at 921 ("One of the most distinctive aspects of the administrative process is the flexibility it affords in the selection of methods for policy formulation"). And at least one of these consequences, the forced growth of unnecessary federal bureaucracy, undermines the very constitutional objectives *786 the Court's decision claims to serve. Cf. Printz v. United States, 521 U.S. 898, 959 (1997) (Stevens, J., dissenting) ("In the name of State's rights, the majority would have the Federal Government create vast national bureaucracies to implement its policies"); id., at 976-978 (Breyer, J., dissenting). These consequences are not purely theoretical. The Court's decision may undermine enforcement against state employers of many laws designed to protect worker health and safety. See, e. g., 42 U.S. C. § 7622 (1994 ed.) (Clean Air Act); 33 U.S. C. § 1367 (Clean Water Act); 15 U.S. C. § 2622 (Toxic Substances Control Act); 42 U.S. C. § 6971 (1994 ed.) (Solid Waste Disposal Act); see also Rhode Island Dept. of Environmental Management v. United States, 286 F.3d 27, 36-40 (CA1 2002). And it may inhibit the development of federal fair, rapid, and efficient informal nonjudicial responses to complaints, for example, of improper medical care (involving state hospitals). Cf. generally Macchiaroli, Medical Malpractice Screening Panels: Proposed Model Legislation to Cure Judicial Ills, 58 Geo. Wash. L. Rev. 181 (1990). * * * The Court's decision threatens to deny the Executive and Legislative Branches of Government the structural flexibility that the Constitution permits and which modern government demands. The Court derives from the abstract notion of state "dignity" a structural principle that limits the powers of both Congress and the President. Its reasoning rests almost exclusively upon the use of a formal analogy, which, as I have said, jumps ordinary separation-of-powers bounds. It places "great significance" upon the 18th-century absence of 20th-century administrative proceedings. See ante, at 755. And its conclusion draws little support from considerations of constitutional purpose or related consequence. In its readiness to rest a structural limitation on so little evidence and in its willingness to interpret that limitation so *787 broadly, the majority ignores a historical lesson, reflected in a constitutional understanding that the Court adopted long ago: An overly restrictive judicial interpretation of the Constitution's structural constraints (unlike its protections of certain basic liberties) will undermine the Constitution's own efforts to achieve its far more basic structural aim, the creation of a representative form of government capable of translating the people's will into effective public action. This understanding, underlying constitutional interpretation since the New Deal, reflects the Constitution's demands for structural flexibility sufficient to adapt substantive laws and institutions to rapidly changing social, economic, and technological conditions. It reflects the comparative inability of the Judiciary to understand either those conditions or the need for new laws and new administrative forms they may create. It reflects the Framers' own aspiration to write a document that would "constitute" a democratic, libertyprotecting form of government that would endure through centuries of change. This understanding led the New Deal Court to reject overly restrictive formalistic interpretations of the Constitution's structural provisions, thereby permitting Congress to enact social and economic legislation that circumstances had led the public to demand. And it led that Court to find in the Constitution authorization for new forms of administration, including independent administrative agencies, with the legal authority flexibly to implement, i. e., to "execute," through adjudication, through rulemaking, and in other ways, the legislation that Congress subsequently enacted. See, e. g., Yakus v. United States, 321 U.S. 414 (1944); Crowell v. Benson, supra, at 45-47. Where I believe the Court has departed from this basic understanding I have consistently dissented. See, e. g., Kimel v. Florida Bd. of Regents, 528 U. S., at 92 (Stevens, J., dissenting in part and concurring in part); Alden v. Maine, 527 U. S., at 760 (Souter, J., dissenting); College Savings Bank v. Florida Prepaid Postsecondary Ed. Expense Bd., *788 527 U. S., at 693 (Breyer, J., dissenting); Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U.S. 627, 648 (1999) (Stevens, J., dissenting); Seminole Tribe of Fla. v. Florida, 517 U. S., at 100 (Souter, J., dissenting). These decisions set loose an interpretive principle that restricts far too severely the authority of the Federal Government to regulate innumerable relationships between State and citizen. Just as this principle has no logical starting place, I fear that neither does it have any logical stopping point. Today's decision reaffirms the need for continued dissent— unless the consequences of the Court's approach prove anodyne, as I hope, rather than randomly destructive, as I fear.

The Court holds that a private person cannot bring a complaint against a State to a federal administrative agency where the agency (1) will use an internal adjudicative process to decide if the complaint is well founded, and (2) if so, proceed to court to enforce the law. Where does the Constitution contain the principle of law that the Court enunciates? I cannot find the answer to this question in any text, in any tradition, or in any relevant purpose. In saying this, I do not simply reiterate the dissenting views set forth in many of the Court's recent sovereign immunity decisions. See, e. g., ; ; College Savings ; Seminole Tribe of For even were I to believe that those decisions properly stated the law—which I do not—I still could not accept the Court's conclusion here. *773 I At the outset one must understand the constitutional nature of the legal proceeding before us. The legal body conducting the proceeding, the Federal Maritime Commission, is an "independent" federal agency. Constitutionally speaking, an "independent" agency belongs neither to the Legislative Branch nor to the Judicial Branch of Government. Although Members of this Court have referred to agencies as a "fourth branch" of Government, the agencies, even "independent" agencies, are more appropriately considered to be part of the Executive Branch. See The President appoints their chief administrators, typically a Chairman and s, subject to confirmation by the Senate. Cf. The agencies derive their legal powers from congressionally enacted statutes. And the agencies enforce those statutes, i. e., they "execute" them, in part by making rules or by adjudicating matters in dispute. Cf. Panama Refining The Court long ago laid to rest any constitutional doubts about whether the Constitution permitted Congress to delegate rulemaking and adjudicative powers to agencies. E. g., ; ; Commodity Futures Trading That, in part, is because the Court established certain safeguards surrounding the exercise of these powers. See, e. g., A. L. A. Schechter ; And the Court denied that those activities as safeguarded, however much they might resemble the activities of a legislature or court, fell within the *774 scope of Article I or Article III of the Constitution. Schechter ; ; see also 2 U.S. 919, Consequently, in exercising those powers, the agency is engaging in an Article II, Executive Branch activity. And the powers it is exercising are powers that the Executive Branch of Government must possess if it is to enforce modern law through administration. This constitutional understanding explains why both commentators and courts have often attached the prefix "quasi" to descriptions of an agency's rulemaking or adjudicative functions. E. g., Humphrey's ; 3 C. Koch, Administrative Law and Practice 12.13 ; The Choice of Rulemaking or Adjudication in the Development of Administrative Policy, ; Friendly, The Federal Administrative Agencies: The Need for Better Definition of Standards, The terms "quasi legislative" and "quasi adjudicative" indicate that the agency uses legislative like or court like procedures but that it is not, constitutionally speaking, either a legislature or a court. See ; at The case before us presents a fairly typical example of a federal administrative agency's use of agency adjudication. Congress has enacted a statute, the Shipping Act of 1984 (Act or Shipping Act), U.S. C. App. 1701 et seq. (1994 ed. and Supp. V), which, among other things, forbids marine terminal operators to discriminate against terminal users. 1709(d)(4) (1994 ed., Supp. V). The Act grants the Federal Maritime Commission the authority to administer the Act. The law grants the Commission the authority to enforce the Act in a variety of ways, for example, by making rules and *775 regulations, 1716 (1994 ed.), by issuing or revoking licenses, 1718 (1994 ed., Supp. V), and by conducting investigations and issuing reports, see generally 1710 (1994 ed. and Supp. V). It also permits a private person to file a complaint, which the Commission is to consider. 1710(a) (1994 ed.). Interestingly enough, it does not say that the Commission must determine the merits of the complaint through agency adjudication, see 1710(g) (1994 ed., Supp. V)—though, for present purposes, I do not see that this statutory lacuna matters. Regardless, the Federal Maritime Commission has decided to evaluate complaints through an adjudicative process. That process involves assignment to an administrative law judge, CFR 502.1(a) a hearing, an initial decision, 502.147, 502.223, Commission review, and a final Commission decision, 502.227, followed by federal appellate court review, 28 U.S. C. 2342(3)(B). The initial hearing, like a typical court hearing, involves a neutral decisionmaker, an opportunity to present a case or defense through oral or documentary evidence, a right to cross-examination, and a written record that typically constitutes the basis for decision. CFR 502.154 But unlike a typical court proceeding, the agency process also may involve considerable hearsay, resolution of factual disputes through the use of "official notice," 502.156; see also 5 U.S. C. 556, and final decisionmaking by a Commission that remains free to disregard the initial decision and decide the matter on its own—indeed through the application of substantive as well as procedural rules, that it, the Commission, itself has created. See CFR 502.226, 502.227, 502.230 ; see also U.S. C. App. 1716 (1994 ed.) (rulemaking authority); CFR 502.51-502.56 The outcome of this process is often a Commission order, say, an order that tells a party to cease and desist from certain activity or that tells one party to pay money damages (called "reparations") to another. The Commission cannot *776 itself enforce such an order. See U.S. C. App. 1712(e). Rather, the Shipping Act says that, to obtain enforcement of an order providing for money damages, the private party beneficiary of the order must obtain a court order. 1713(d). It adds that, to obtain enforcement of other commission orders, either the private party or the Attorney General must go to court. 1713(c). It also permits the Commission to seek a court injunction prohibiting any person from violating the Shipping Act. 1710(g) (1994 ed., Supp. V). And it authorizes the Commission to assess civil penalties (payable to the United States) against a person who fails to obey a Commission order; but to collect the penalties, the Commission, again, must go to court. 1712(a), (c) (1994 ed. and Supp. V). The upshot is that this case involves a typical Executive Branch agency exercising typical Executive Branch powers seeking to determine whether a particular person has violated federal law. Cf. 2 K. Davis & R. Pierce, Administrative Law Treatise 37-38 (1994) (describing typical agency characteristics); cf. also The particular person in this instance is a state entity, the South Carolina State Ports Authority, and the agency is acting in response to the request of a private individual. But at first blush it is difficult to see why these special circumstances matter. After all, the Constitution created a Federal Government empowered to enact laws that would bind the States and it empowered that Federal Government to enforce those laws against the States. See Knickerbocker Ice It also left private individuals perfectly free to complain to the Federal Government about unlawful state activity, and it left the Federal Government free to take subsequent legal action. Where then can the Court find its constitutional principle—the principle that the Constitution forbids an Executive Branch agency to determine through ordinary adjudicative processes whether such a private complaint is *777 justified? As I have said, I cannot find that principle anywhere in the Constitution. II The Court's principle lacks any firm anchor in the Constitution's text. The Eleventh Amendment cannot help. It says: "The Judicial power of the United States shall not extend to any suit commenced or prosecuted against one of the States by Citizens of another State." (Emphasis added.) Federal administrative agencies do not exercise the "[j]udicial power of the United States." Compare with -891 and Of course, this Court has read the words "Citizens of another State" as if they also said "citizen of the same State." But it has never said that the words "[j]udicial power of the United States" mean "the executive power of the United States." Nor should it. The Tenth Amendment cannot help. It says: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." The Constitution has "delegated to the United States" the power here in question, the power "[t]o regulate Commerce with foreign Nations, and among the several States." U. S. Const., Art. I, 8, cl. 3; see The Court finds within this delegation a hidden reservation, a reservation that, due to sovereign immunity, embodies the legal principle the Court enunciates. *778 But the text of the Tenth Amendment says nothing about any such hidden reservation, one way or the other. Indeed, the Court refers for textual support only to an earlier case, namely, and, through Alden, to the texts that Alden mentioned. These textual references include: (1) what Alexander Hamilton described as a constitutional "postulate," namely, that the States retain their immunity from "suits, without their consent," unless there has been a "surrender" of that immunity "in the plan of the convention," ; (2) what the Alden majority called "the system of federalism established by the Constitution," ib; and (3) what the Alden majority called "the constitutional design," See also (noting that the Court's opinion nowhere relied on constitutional text). Considered purely as constitutional text, these words— "constitutional design," "system of federalism," and "plan of the convention"—suffer several defects. Their language is highly abstract, making them difficult to apply. They invite differing interpretations at least as much as do the Constitution's own broad liberty-protecting phrases, such as "due process of law" or the word "liberty" itself. And compared to these latter phrases, they suffer the additional disadvantage that they do not actually appear anywhere in the Constitution. Cf. generally Regardless, unless supported by considerations of history, of constitutional purpose, or of related consequence, those abstract phrases cannot support today's result. III Conceding that its conception of sovereign immunity is ungrounded in the Constitution's text, see ante, at 751-753, 767-768, n. 18, the Court attempts to support its holding with history. But this effort is similarly destined to fail, because *779 the very history to which the majority turned in Alden here argues against the Court's basic analogy—between a federal administrative proceeding triggered by a private citizen and a private citizen's lawsuit against a State. In Alden the Court said that feudal law had created an 18th-century legal norm to the effect that "`no lord could be sued by a vassal in his own court, but each petty lord was subject to suit in the courts of a higher lord.' " It added that the Framers' silence about the matter had woven that feudal "norm" into the "constitutional design," i. e., had made it part of our "system of federalism" unchanged by the "`plan of the convention.' " And that norm, said the Alden Court, by analogy forbids a citizen ("vassal") to sue a State ("lord") in the "lord's" own courts. Here that same norm argues against immunity, for the forum at issue is federal—belonging by analogy to the "higher lord." And total 18th-century silence about state immunity in Article I proceedings would argue against, not in favor of, immunity. In any event, the 18th century was not totally silent. The Framers enunciated in the "plan of the convention" the principle that the Federal Government may sue a State without its consent. See, e. g., West They also described in the First Amendment the right of a citizen to petition the Federal Government for a redress of grievances. See also United ; cf. generally Mark, The Vestigial Constitution: The History and Significance of the Right to Petition, 66 Ford. L. Rev. 2153, 2227 (1998). The first principle applies here because only the Federal Government, not the private party, can—in light of this Court's recent sovereign immunity jurisprudence, see Seminole Tribe of —bring the ultimate court action necessary legally to force a State to comply with the relevant federal law. See at 71, n. 14. The second principle applies here because *780 a private citizen has asked the Federal Government to determine whether the State has complied with federal law and, if not, to take appropriate legal action in court. Of course these two principles apply only through analogy. (The Court's decision also relies on analogy—one that jumps the separation-of-powers boundary that the Constitution establishes.) Yet the analogy seems apt. A private citizen, believing that a State has violated federal law, seeks a determination by an Executive Branch agency that he is right; the agency will make that determination through use of its own adjudicatory agency processes; and, if the State fails to comply, the Federal Government may bring an action against the State in federal court to enforce the federal law. Twentieth-century legal history reinforces the appropriateness of this description. The growth of the administrative state has led this Court to determine that administrative agencies are not Article III courts, see -53, that they have broad discretion to proceed either through agency adjudication or through rulemaking, and that they may bring administrative enforcement proceedings against States. At a minimum these historically established legal principles argue strongly against any effort to analogize the present proceedings to a lawsuit brought by a private individual against a State in a state court or to an Eleventh Amendment type lawsuit brought by a private individual against a State in a federal court. This is not to say that the analogy (with a citizen petitioning for federal intervention) is, historically speaking, a perfect one. As the Court points out, the Framers may not have "anticipated the vast growth of the administrative state," and the history of their debates "does not provide direct guidance." Ante, at 755. But the Court is wrong to *781 ignore the relevance and importance of what the Framers did say. And it is doubly wrong to attach "great" legal "significance" to the absence of 18th- and 19th-century administrative agency experience. See ib Even if those alive in the 18th century did not "anticipat[e] the vast growth of the administrative state," ib they did write a Constitution designed to provide a framework for Government across the centuries, a framework that is flexible enough to meet modern needs. And we cannot read their silence about particular means as if it were an instruction to forbid their use. IV The Court argues that the basic purpose of "sovereign immunity" doctrine—namely, preservation of a State's "dignity"—requires application of that doctrine here. It rests this argument upon (1) its efforts to analogize agency proceedings to court proceedings, and (2) its claim that the agency proceedings constitute a form of "compulsion" exercised by a private individual against the State. As I have just explained, I believe its efforts to analogize agencies to courts are, constitutionally speaking, too frail to support its conclusion. Neither can its claim of "compulsion" provide the necessary support. Viewed from a purely legal perspective, the "compulsion" claim is far too weak. That is because the private individual lacks the legal authority to compel the State to comply with the law. For as I have noted, in light of the Court's recent sovereign immunity decisions, if an individual does bring suit to enforce the Commission's order, see U.S. C. App. 1713 (1994 ed.), the State would arguably be free to claim sovereign immunity. See Seminole Tribe of Only the Federal Government, acting through the Commission or the Attorney General, has the authority to compel the State to act. In a typical instance, the private individual will file a complaint, the agency will adjudicate the complaint, and the *782 agency will reach a decision. The State subsequently may take the matter to court in order to obtain judicial review of any adverse agency ruling, but, if it does so, its opponent in that court proceeding is not a private party, but the agency itself. 28 U.S. C. 2344. (And unlike some other administrative schemes, see, e. g., Verizon Md. Inc. v. Public Serv. Comm'n of Md., ante, at 651-653 (Souter, J., concurring), the Commission would not be a party in name only.) Alternatively, the State may do nothing, in which case either the Commission or the Attorney General must seek a court order compelling the State to obey. U.S. C. App. 1710, 1713 (1994 ed. and Supp. V). The Commission, but not a private party, may assess a penalty against the State for noncompliance, 1712; and only a court acting at the Commission's request can compel compliance with a penalty order. In sum, no one can legally compel the State's obedience to the Shipping Act's requirements without a court order, and in no case would a court issue such an order ) absent the request of a federal agency or other federal instrumentality. In Alden this Court distinguished for sovereign immunity purposes between (a) a lawsuit brought by the Federal Government and (b) a lawsuit brought by a private person. It held that principles of "sovereign immunity" barred suit in the latter instance but not the former, because the former— a suit by the Federal Government—"require[s] the exercise of political responsibility for each suit prosecuted against a State." That same "exercise of political responsibility" must take place here in every instance prior to the issuance of an order that, from a legal perspective, will compel the State to obey. To repeat: Without a court proceeding the private individual cannot legally force the State to act, to pay, or to desist; only the Federal Government may institute a court proceeding; and, in deciding *783 whether to do so, the Federal Government will exercise appropriate political responsibility. Cf. ib Viewed from a practical perspective, the Court's "compulsion" claim proves far too much. Certainly, a private citizen's decision to file a complaint with the Commission can produce practical pressures upon the State to respond and eventually to comply with a Commission decision. By appearing before the Commission, the State will be able to obtain full judicial review of an adverse agency decision in a court of appeals (where it will face in opposition the Commission itself, not the private party). By appearing, the State will avoid any potential Commission-assessed monetary penalty. And by complying, it will avoid the adverse political, practical, and symbolic implications of being labeled a federal "lawbreaker." Practical pressures such as these, however, cannot sufficiently "affront" a State's "dignity" as to warrant constitutional "sovereign immunity" protections, for it is easy to imagine comparable instances of clearly lawful private citizen complaints to Government that place a State under far greater practical pressures to comply. No one doubts, for example, that a private citizen can complain to Congress, which may threaten (should the State fail to respond) to enact a new law that the State opposes. Nor does anyone deny that a private citizen, in complaining to a federal agency, may seek a rulemaking proceeding, which may lead the agency (should the State fail to respond) to enact a new agency rule that the State opposes. A private citizen may ask an agency formally to declare that a State is not in compliance with a statute or federal rule, even though from that formal declaration may flow a host of legal consequences adverse to a State's interests. See, e. g., 42 U.S. C. 300g-3 (Environmental Protection Agency may declare that a State is in noncompliance with federal water quality regulations). And one can easily imagine a legal scheme in which a private individual files a complaint like the one before us, but asks *784 an agency staff member to investigate the matter, which investigation would lead to an order similar to the order at issue here with similar legal and practical consequences. Viewed solely in terms of practical pressures, the pressures upon a State to respond before Congress or the agency, to answer the private citizen's accusations, to oppose his requests for legally adverse agency or congressional action, would seem no less powerful than those at issue here. Once one avoids the temptation to think (mistakenly) of an agency as a court, it is difficult to see why the practical pressures at issue here would "affront" a State's "dignity" any more than those just mentioned. And if the latter create no constitutional "dignity" problem, why should the former? The Court's answer—that "[s]overeign immunity concerns are not implicated" unless the "Federal Government attempts to coerce States into answering the complaints of private parties in an adjudicative proceeding," ante, at 764, n. 16—simply begs the question of when and why States should be entitled to special constitutional protection. The Court's more direct response lies in its claim that the practical pressures here are special, arising from a set of statutes that deprive a nonresponding State of any meaningful judicial review of the agency's determinations. See ante, at 760-764. The Court does not explain just what makes this kind of pressure constitutionally special. But in any event, the Court's response is inadequate. The statutes clearly provide the State with full judicial review of the initial agency decision should the State choose to seek that review. 28 U.S. C. 2342(3)(B)(iv). That review cannot "affront" the State's "dignity, for it takes place in a court proceeding in which the Commission, not the private party, will oppose the State. 2344. Even were that not so, Congress could easily resolve the resulting problem by making clear that the relevant statutes authorize full judicial review in an enforcement action brought against a State. For that matter, one might interpret *785 existing statutes as permitting in such actions whatever form of judicial review the Constitution demands. Cf. -47. Statutory language that authorizes review of whether an order was "properly made and duly issued," U.S. C. App. 1713(c), does not forbid review that the Constitution requires. But even were I to make the heroic assumption (which I do not believe) that this case implicates a reviewing court's statutory inability to apply constitutionally requisite standards of judicial review, I should still conclude that the Constitution permits the agency to consider the complaint here before us. The "review standards" problem concerns the later enforceability of the agency decision, and the Court must consider any such problem later in the context of a court order granting or denying review. ("`It is not the habit of the Court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case' "). V The Court cannot justify today's decision in terms of its practical consequences. The decision, while permitting an agency to bring enforcement actions against States, forbids it to use agency adjudication in order to help decide whether to do so. Consequently the agency must rely more heavily upon its own informal staff investigations in order to decide whether a citizen's complaint has merit. The natural result is less agency flexibility, a larger federal bureaucracy, less fair procedure, and potentially less effective law enforcement. See Pension Benefit Guaranty Corporation v. LTV ; cf. also And at least one of these consequences, the forced growth of unnecessary federal bureaucracy, undermines the very constitutional objectives *786 the Court's decision claims to serve. Cf. ("In the name of State's rights, the majority would have the Federal Government create vast national bureaucracies to implement its policies"); These consequences are not purely theoretical. The Court's decision may undermine enforcement against state employers of many laws designed to protect worker health and safety. See, e. g., 42 U.S. C. 7622 (1994 ed.) (Clean Air Act); 33 U.S. C. 1367 (Clean Water Act); 15 U.S. C. 2622 (Toxic Substances Control Act); 42 U.S. C. 6971 (1994 ed.) (Solid Waste Disposal Act); see also Rhode Island Dept. of Environmental And it may inhibit the development of federal fair, rapid, and efficient informal nonjudicial responses to complaints, for example, of improper medical care (involving state hospitals). Cf. generally Macchiaroli, Medical Malpractice Screening Panels: Proposed Model Legislation to Cure Judicial Ills, * * * The Court's decision threatens to deny the Executive and Legislative Branches of Government the structural flexibility that the Constitution permits and which modern government demands. The Court derives from the abstract notion of state "dignity" a structural principle that limits the powers of both Congress and the President. Its reasoning rests almost exclusively upon the use of a formal analogy, which, as I have said, jumps ordinary separation-of-powers bounds. It places "great significance" upon the 18th-century absence of 20th-century administrative proceedings. See ante, at 755. And its conclusion draws little support from considerations of constitutional purpose or related consequence. In its readiness to rest a structural limitation on so little evidence and in its willingness to interpret that limitation so *787 broadly, the majority ignores a historical lesson, reflected in a constitutional understanding that the Court adopted long ago: An overly restrictive judicial interpretation of the Constitution's structural constraints (unlike its protections of certain basic liberties) will undermine the Constitution's own efforts to achieve its far more basic structural aim, the creation of a representative form of government capable of translating the people's will into effective public action. This understanding, underlying constitutional interpretation since the New Deal, reflects the Constitution's demands for structural flexibility sufficient to adapt substantive laws and institutions to rapidly changing social, economic, and technological conditions. It reflects the comparative inability of the Judiciary to understand either those conditions or the need for new laws and new administrative forms they may create. It reflects the Framers' own aspiration to write a document that would "constitute" a democratic, libertyprotecting form of government that would endure through centuries of change. This understanding led the New Deal Court to reject overly restrictive formalistic interpretations of the Constitution's structural provisions, thereby permitting Congress to enact social and economic legislation that circumstances had led the public to demand. And it led that Court to find in the Constitution authorization for new forms of administration, including independent administrative agencies, with the legal authority flexibly to implement, i. e., to "execute," through adjudication, through rulemaking, and in other ways, the legislation that Congress subsequently enacted. See, e. g., ; Where I believe the Court has departed from this basic understanding I have consistently dissented. See, e. g., ; ; College Savings * ; Prepaid Postsecondary Ed. Expense ; Seminole Tribe of These decisions set loose an interpretive principle that restricts far too severely the authority of the Federal Government to regulate innumerable relationships between State and citizen. Just as this principle has no logical starting place, I fear that neither does it have any logical stopping point. Today's decision reaffirms the need for continued dissent— unless the consequences of the Court's approach prove anodyne, as I hope, rather than randomly destructive, as I fear.

Justice Souter

majority

Lawyer v. Department of Justice

1997-06-25

https://www.courtlistener.com/opinion/118141/lawyer-v-department-of-justice/

https://www.courtlistener.com/api/rest/v3/clusters/118141/

1996-088

Appellant was one of several plaintiffs in this suit challenging the configuration of a Florida legislative district under the Equal Protection Clause. All parties except appellant reached a provisional settlement agreement and, after a fairness hearing, a three-judge District Court approved the remedial districting plan proposed in the agreement. Appellant claims that the District Court acted without giving the State an adequate opportunity to make its own redistricting choice by approving the remedial plan without first adjudicating the legality of the original plan, that the court had no authority to approve any settlement over his objection, and that the remedial plan violates the Constitution. We hold that the State exercised the choice to which it was entitled under our cases, that appellant has no right to block the settlement, and that he has failed to point up any unconstitutionality in the plan proposed. I After the 1990 Decennial Census, the Florida Legislature adopted a reapportionment plan for Florida's 40 Senate districts and 120 House districts. Following the procedure for *570 reapportionment set forth in the State Constitution, see Fla. Const., Art. III, § 16(c) (1970), the attorney general of Florida petitioned the State Supreme Court for a declaration that the plan comported with state and federal law. That court approved the redistricting plan, while noting that time constraints imposed by the State Constitution precluded a full review of objections raised to the plan under § 2 of the Voting Rights Act of 1965, 79 Stat. 437, as amended, 42 U.S. C. § 1973. The court retained jurisdiction to entertain further objections to the plan. See In re Constitutionality of Senate Joint Resolution 2G, 597 So. 2d 276, 285-286 (Fla.), amended, 601 So. 2d 543 (Fla. 1992); Johnson v. De Grandy, 512 U.S. 997, 1001 (1994). Since five Florida counties, including Hillsborough County where the city of Tampa is located, are covered jurisdictions under § 5 of the Voting Rights Act of 1965, 79 Stat. 439, as amended, 42 U.S. C. § 1973c, see 28 CFR pt. 51, App. (1996); see also Johnson, supra, at 1001, n. 2, the state attorney general submitted the redistricting plan to the United States Department of Justice for preclearance. On June 16, 1992, the Department declined to preclear the proposed State Senate districts, on the grounds that the redistricting plan divided "politically cohesive minority populations" in the Hillsborough County area and failed to create a majority-minority district in that region. Letter from Assistant United States Attorney General John Dunne to Florida Attorney General Robert A. Butter worth (quoted in In re Constitutionality of Senate Joint Resolution 2G, supra, at 547 (Shaw, C. J., specially concurring)); see also De Grandy v. Wetherell, 815 F. Supp. 1550, 1556 (ND Fla. 1992), aff'd in part and rev'd in part, Johnson v. De Grandy, supra. The Supreme Court of Florida then entered an order encouraging the state legislature to adopt a new plan to address the Justice Department's objection, and noting that if the legislature failed to act, the court itself would adopt a reapportionment plan. See 815 F. Supp., at 1556; see also *571 601 So. 2d, at 544-545. The state court was advised that the Governor had no intent to convene the legislature in extraordinary session and that neither the President of the Senate nor the Speaker of the House of Representatives would convene his respective House. Ibid.; see also 815 F. Supp., at 1556. The court concluded that a legislative impasse had occurred and, invoking authority under state law, revised the Senate redistricting plan to address the Justice Department's objection. 601 So. 2d, at 545. The amended plan, known as Plan 330, called for an irregularly shaped Senate District 21, with a voting-age population 45.8% black and 9.4% Hispanic and comprising portions of four counties in the Tampa Bay area. Id., at 546. The district included the central portions of Tampa in Hillsborough County, the eastern shore of Tampa Bay running south to Bradenton in Manatee County, central portions of St. Petersburg in Pinellas County, a narrow projection eastward through parts of Hillsborough and Polk Counties, and a narrow finger running north from St. Petersburg to Clearwater. See Juris. Statement 29a. Although the State Supreme Court acknowledged that the district was "more contorted" than other possible plans and that black residents in different parts of the district might have little in common besides their race, it decided that such concerns "must give way to racial and ethnic fairness." See 601 So. 2d, at 546. Elections were held under Plan 330 in 1992 and 1994.[1] On April 14, 1994, appellant and five other residents of Hillsborough County filed this suit in the District Court invoking jurisdiction under 28 U.S. C. §§ 1331, 1343, and 2201, et seq., naming the State of Florida, its attorney general, and the United States Department of Justice as defendants, and alleging that District 21 in Plan 330 violated the Equal Protection *572 Clause. The plaintiffs sought declaratory and injunctive relief, including an order requiring Florida to reconfigure the district. See App. 14. A three-judge District Court was convened and ultimately permitted intervention by the State Senate, House of Representatives, Secretary of State, District 21 Senator James T. Hargrett, Jr., and a group of black and Hispanic voters residing in District 21. Record 33, 78; 159 Tr. 25, 30 (Sept. 27, 1995). At a status conference held on July 6, 1995, shortly after we decided Miller v. Johnson, 515 U.S. 900 (1995), all parties agreed to the appointment of a mediator to seek resolution of the suit,[2] see Record 78, at 2; 134 Tr. 13, 14, 16 (July 6, 1995), though pretrial proceedings continued during the ensuing mediation. After the mediator declared an impasse in late October, see 166 Tr. 8 (Oct. 26, 1995), the parties continued discussions on their own and on November 2, 1995, filed with the District Court a settlement agreement signed on behalf of all parties except appellant. App. 17-21. The agreement noted that while the defendants and defendantintervenors denied the plaintiffs' claims that District 21 was unconstitutional, all parties to the settlement concurred that "there is a reasonable factual and legal basis for the plaintiffs' claim." Id., at 17. The agreement proposed revising District 21 under a new plan, called Plan 386, which would be subject to public comment and, if approved by the District Court after a public hearing, would be used in state elections unless Florida adopted a new plan. Id., at 18-19. District *573 21, as revised in Plan 386, would no longer extend into Polk County or north toward Clearwater, would have a boundary length decreased by 58%, and would include a resident black voting-age population reduced from 45.0% to 36.2%. Id., at 25, 40. The proposed district would cover portions of three counties instead of four and continue to include land on both sides of Tampa Bay. Record 169, attachment 4. At a status conference held the same day the parties filed the settlement agreement, the District Court sought and received specific assurances from lawyers for the President of the Senate and the Speaker of the House that they were authorized to represent their respective government bodies in the litigation and enter into the settlement proposed. 180 Tr. 23-24 (Nov. 2, 1995). Appellant argued that the District Court was required to hold Plan 330 unconstitutional before it could adopt a new districting plan, see id., at 16, but the District Court disagreed, noting that "there is simply not a litigable issue with respect to what we have for shorthand purposes referred to as liability and we ought simply then to proceed . . . to resolve the issue of the fairness of this proposed settlement and entertain any objections [concerning it]." Id., at 26. The District Court scheduled a hearing on the proposed plan for November 20, giving notice in 13 area newspapers and making details of the plan available for review in the clerk's office. See App. 161. Before the hearing, the settling parties submitted evidence including affidavits and declarations addressing the factors considered in revising District 21, Record 188, and appellant submitted his own remedial plan for a District 21 wholly contained within Hillsborough County, Record 172, at A4. At the hearing, counsel for the State Senate summarized the prehearing filings submitted by proponents of the settlement and the rationale behind the agreement. App. 160-172. The District Court denied appellant's motion for ruling on his motion for summary judgment on the legality of Plan 330, saying that "[i]t makes *574 no difference whether we grant the motion or not. . . . [I]f we granted your motion, we would be in this precise posture we are in now." Id., at 173. Appellant then argued that District 21, as redrawn in Plan 386, would still be unconstitutional because only race could explain its contours, see id., at 175-188, and counsel for a former state legislator spoke to the same effect, id., at 188-190. On March 19, 1996, the District Court approved the settlement. See 920 F. Supp. 1248, 1257 (MD Fla. 1996). The panel majority first held that it was not obliged to find the existing District 21 unconstitutional in order to approve the settlement. While recognizing the need to "guard against any disingenuous adventures" by litigants, id., at 1252, n. 2, the majority noted that a State should not be deprived of the opportunity to avoid "an expensive and protracted contest and the possibility of an adverse and disruptive adjudication" by a rule insisting on "a public mea culpa " as the sole condition for dispensing with "a dispositive, specific determination of the controlling constitutional issue." Id., at 1252, and n. 2. To balance the competing interests, the court required a showing of a substantial "evidentiary and legal" basis for the plaintiffs' claim before the settlement would be approved, id., at 1252, and it held the standard satisfied. "Each party either states unequivocally that existing District 21 is unconstitutionally configured or concedes, for purposes of settlement, that the plaintiffs have established prima facie unconstitutionality." Id., at 1253, n. 3. The majority found that the "boundaries of current District 21 are markedly uneven and, in some respects, extraordinary," id., at 1253, and that the district "bears at least some of the conspicuous signs of a racially conscious contrivance," id., at 1255. The District Court then turned to the merits of Plan 386 to determine whether its formation had been "dominated by the single-minded focus" on race that it understood to be constitutionally forbidden under Miller. 920 F. Supp., at *575 1254. The court observed that the November 20 hearing "produced but two dissenters, plaintiff Lawyer and a former state Senator, both of whom neither presented relevant evidence nor offered germane legal argument." Id. , at 1255. The District Court concluded that a "constitutional objection to the proposed District 21 is not established. In its shape and composition, proposed District 21 is, all said and done, demonstrably benign and satisfactorily tidy, especially given the prevailing geography." Ibid. The court noted that the new district's percentage of minority residents would approximate the racial features of the region surrounding Tampa Bay better than Plan 330 did, that the district's boundaries would be "less strained and irregular" than those in Plan 330, and that all candidates, regardless of race, would have an opportunity to seek office, with "both a fair chance to win and the usual risk of defeat." Id., at 1255, 1256. Chief Judge Tjoflat concurred specially. He agreed that Plan 386 was constitutional but thought that the new plan could not be approved without a judicial determination that Plan 330 was unconstitutional, as he concluded it was. Id., at 1256-1257. We noted probable jurisdiction, 519 U.S. 926 (1996), and now affirm. II A Appellant argues that the District Court erred in approving the settlement agreement without formally holding Plan 330 unconstitutional, thereby denying the State's legislature and Supreme Court the opportunity to devise a new redistricting plan.[3] See Brief for Appellant 23, 32-33. Appellant *576 relies on Growe v. Emison, 507 U.S. 25 (1993), in which we recognized that "`reapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court' [and that] [a]bsent evidence that these state branches will fail timely to perform that duty, a federal court must neither affirmatively obstruct state apportionment nor permit federal litigation to be used to impede it." Id., at 34 (quoting Chapman v. Meier, 420 U.S. 1, 27 (1975)). Appellant cites Wise v. Lipscomb, 437 U.S. 535 (1978), for the proposition that when a federal court declares an existing apportionment plan unconstitutional, it should, if possible, afford "a reasonable opportunity for the legislature to meet constitutional requirements by adopting a substitute measure rather than . . . devise and order into effect its own plan." Id., at 540 (opinion of White, J.). Appellant claims that the District Court's approval of the settlement agreement without first holding Plan 330 unconstitutional impaired the State's interest in exercising "primary responsibility for apportionment of [its] federal congressional and state legislative districts," Growe, supra, at 34, and had the derivative effect of "eviscerat[ing] the individual rights of" appellant, as a citizen and voter, to "the liberties derived from the diffusion of sovereign power . . . to representative state government," Brief for Appellant 26. The substance of what appellant claims as a right to the benefit of political diffusion is nothing other than the rule declared in the cases he cites, that state redistricting responsibility should be accorded primacy to the extent possible when a federal court exercises remedial power. See Growe, 507 U. S., at 34. A State should be given the opportunity to make its own redistricting decisions so long as that is practically possible and the State chooses to take the opportunity. *577 Ibid. When it does take the opportunity, the discretion of the federal court is limited except to the extent that the plan itself runs afoul of federal law. In this case, the State has selected its opportunity by entering into the settlement agreement, which for reasons set out below in Part II—B it had every right to do. And it has availed itself of that opportunity by proposing a plan as embodied in the settlement agreement. There can be no question on the present record that proponents of the plan included counsel authorized to represent the State itself, and there is no reason to suppose that the State's attorney general lacked authority to propose a plan as an incident of his authority to represent the State in this litigation.[4] The evidence, indeed, was entirely in his favor. The participation of counsel for each legislative chamber confirmed both the continuing refusal of the legislature to address the issue in *578 formal session and the authority of the attorney general to propose the settlement plan on the State's behalf.[5] On these facts, the District Court's approval of the settlement agreement was entirely consistent with the principles underlying our cases that have granted relief on the ground that a district court had failed to respect the affected government's entitlement to originate its own redistricting policy. Since the State, through its attorney general, has taken advantage of the option recognized in Growe and Wise to make redistricting decisions in the first instance, there are no reasons in those cases to burden its exercise of choice by requiring a formal adjudication of unconstitutionality. B We find no merit, either, in appellant's apparently distinct claim that, regardless of any effect on the State's districting responsibility, the District Court was bound to adjudicate liability before settlement because appellant did not agree to settle. See Brief for Appellant 27. "It has never been supposed that one party—whether an original party, a party *579 that was joined later, or an intervenor—could preclude other parties from settling their own disputes." Firefighters v. Cleveland, 478 U.S. 501, 528-529 (1986).[6] While appellant was entitled to present evidence and have his objections heard at the hearing to consider approval of the agreement, he "does not have power to block the decree merely by withholding [his] consent." Id., at 529; cf.7B C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1797.1, p. 412 (2d ed. 1986) (fact of opposition does not necessitate disapproval of class-action settlement under Federal Rule of Civil Procedure 23). While a settlement agreement subject to court approval in a nonclass action may not impose duties or obligations on an unconsenting party or "dispose" of his claims, see Firefighters, supra, at 529, the agreement here did none of those things. It disposed of appellant's claim not in the forbidden sense of cutting him off from a remedy to which he was entitled, but only in the legitimate sense of granting him an element of the very relief he had sought. As a remedy for what appellant claimed to be an unconstitutional plan he had requested the elimination of that plan, and the settlement and decree gave him that relief. To afford him a right to the formality of a decree in addition to the substance of the relief sought would be to allow a sore winner to obscure the point of the suit. In most civil litigation, and in this suit in particular, "the judicial decree is not the end but the means. At the end of the rainbow lies not a judgment, but some action (or cessation of action) by the defendant that the judgment produces . . . . The real value of the judicial pronouncement—what makes it a proper judicial *580 resolution of a `case or controversy' rather than an advisory opinion—is in the settling of some dispute which affects the behavior of the defendant towards the plaintiff. " Hewitt v. Helms, 482 U.S. 755, 761 (1987). Appellant, of course, wanted something more than being rid of Plan 330, for he wanted a new plan that would be constitutional. But insofar as he would have been entitled to that following a formal decree of the court, he is now in the same position he would have enjoyed if he had had such a decree: his views on the merits of the proposed plan were heard, and his right to attack it in this appeal is entirely unimpaired. To the extent that he claims anything more, he is trying to do what we have previously said he may not do: to demand an adjudication that the State of Florida, represented by the attorney general, could indeed have demanded, see Growe, 507 U. S., at 34; Wise, 437 U. S., at 540 (opinion of White, J.), but instead waived. III The District Court concluded that Plan 386 did not subordinate traditional districting principles to race.[7] See 920 F. Supp., at 1254-1255. That finding is subject to review for clear error, see Miller, 515 U. S., at 915-917, of which we find none. The District Court looked to the shape and composition of District 21 as redrawn in Plan 386 and found them "demonstrably benign and satisfactorily tidy." 920 F. Supp., at 1255. The district is located entirely in the Tampa Bay area, has an end-to-end distance no greater than that of most Florida *581 Senate districts,[8] and in shape does not stand out as different from numerous other Florida House and Senate districts. See App. 26, 60-75. While District 21 crosses a body of water and encompasses portions of three counties, evidence submitted showed that both features are common characteristics of Florida legislative districts, being products of the State's geography and the fact that 40 Senate districts are superimposed on 67 counties. See id., at 28, 32-33.[9] Addressing composition, the District Court found that the residents of District 21 "regard themselves as a community." 920 F. Supp., at 1255. Evidence indicated that District 21 comprises a predominantly urban, low-income population, the poorest of the nine districts in the Tampa Bay region and among the poorest districts in the State, whose white and black members alike share a similarly depressed economic condition, see App. 30-31, 49-51, and interests that reflect it, id., at 149-154. The fact that District 21 under Plan 386 is not a majority black district, the black voting-age population being 36.2%, supports the District Court's finding that the district is not a "safe" one for black-preferred candidates, but one that "offers to any candidate, without regard to race, the opportunity" to seek and be elected to office. 920 F. Supp., at 1256. *582 Based on these and other considerations,[10] the District Court concluded that traditional districting principles had not been subordinated to race in drawing revised District 21. Appellant calls this finding clearly erroneous, charging that District 21 encompasses more than one county, crosses a body of water, is irregular in shape, lacks compactness, and contains a percentage of black voters significantly higher than the overall percentage of black voters in Hillsborough, Manatee, and Pinellas Counties. Brief for Appellant 40-45. Appellant's first four points ignore unrefuted evidence showing that on each of these points District 21 is no different from what Florida's traditional districting principles could be expected to produce. See supra, at 580-581. As to appellant's final point, we have never suggested that the percentage of black residents in a district may not exceed the percentage of black residents in any of the counties from which the district is created, and have never recognized similar racial composition of different political districts as being necessary to avoid an inference of racial gerrymandering in any one of them. Since districting can be difficult, after all, just because racial composition varies from place to place, and counties and voting districts do not depend on common principles of size and location, facts about the one do not as such necessarily entail conclusions about the other. In short, the evidence amply supports the trial court's views that race did not predominate over Florida's traditional districting principles in drawing Plan 386. Appellant has provided nothing that calls that conclusion into question, much less that points to any clear error. *583 We accordingly affirm the decision of the District Court. It is so ordered.

Appellant was one of several plaintiffs in this suit challenging the configuration of a Florida legislative district under the Equal Protection Clause. All parties except appellant reached a provisional settlement agreement and, after a fairness hearing, a three-judge District Court approved the remedial districting plan proposed in the agreement. Appellant claims that the District Court acted without giving the State an adequate opportunity to make its own redistricting choice by approving the remedial plan without first adjudicating the legality of the original plan, that the court had no authority to approve any settlement over his objection, and that the remedial plan violates the Constitution. We hold that the State exercised the choice to which it was entitled under our cases, that appellant has no right to block the settlement, and that he has failed to point up any unconstitutionality in the plan proposed. I After the 1990 Decennial Census, the Florida Legislature adopted a reapportionment plan for Florida's 40 Senate districts and 120 House districts. Following the procedure for *570 reapportionment set forth in the State Constitution, see Fla. Const., Art. III, 16(c) (1970), the attorney general of Florida petitioned the State Supreme Court for a declaration that the plan comported with state and federal law. That court approved the redistricting plan, while noting that time constraints imposed by the State Constitution precluded a full review of objections raised to the plan under 2 of the Voting Rights Act of 1965, as amended, 42 U.S. C. 1973. The court retained jurisdiction to entertain further objections to the plan. See In re Constitutionality of Senate Joint Resolution (Fla.), amended, ; Since five Florida counties, including Hillsborough County where the city of Tampa is located, are covered jurisdictions under 5 of the Voting Rights Act of 1965, as amended, 42 U.S. C. 1973c, see 28 CFR pt. 51, App. ; see at n. 2, the state attorney general submitted the redistricting plan to the United States Department of Justice for preclearance. On June 16, the Department declined to preclear the proposed State Senate districts, on the grounds that the redistricting plan divided "politically cohesive minority populations" in the Hillsborough County area and failed to create a majority-minority district in that region. Letter from Assistant United States Attorney General John Dunne to Florida Attorney General Robert A. Butter worth (quoted in In re Constitutionality of Senate Joint Resolution ); see De aff'd in part and rev'd in part, The Supreme Court of Florida then entered an order encouraging the state legislature to adopt a new plan to address the Justice Department's objection, and noting that if the legislature failed to act, the court itself would adopt a reapportionment plan. See 815 F. Supp., at ; see * -545. The state court was advised that the Governor had no intent to convene the legislature in extraordinary session and that neither the President of the Senate nor the Speaker of the House of Representatives would convene his respective House. ; see 815 F. Supp., at The court concluded that a legislative impasse had occurred and, invoking authority under state law, revised the Senate redistricting plan to address the Justice Department's The amended plan, known as Plan 330, called for an irregularly shaped Senate District 21, with a voting-age population 45.8% black and 9.4% Hispanic and comprising portions of four counties in the Tampa Bay area. The district included the central portions of Tampa in Hillsborough County, the eastern shore of Tampa Bay running south to Bradenton in Manatee County, central portions of St. Petersburg in Pinellas County, a narrow projection eastward through parts of Hillsborough and Polk Counties, and a narrow finger running north from St. Petersburg to Clearwater. See Juris. Statement 29a. Although the State Supreme Court acknowledged that the district was "more contorted" than other possible plans and that black residents in different parts of the district might have little in common besides their race, it decided that such concerns "must give way to racial and ethnic fairness." See 601 So. 2d, Elections were held under Plan 330 in and 1994.[1] On April 14, 1994, appellant and five other residents of Hillsborough County filed this suit in the District Court invoking jurisdiction under 28 U.S. C. 1331, 1343, and 2201, et seq., naming the State of Florida, its attorney general, and the United States Department of Justice as defendants, and alleging that District 21 in Plan 330 violated the Equal Protection *572 Clause. The plaintiffs sought declaratory and injunctive relief, including an order requiring Florida to reconfigure the district. See App. 14. A three-judge District Court was convened and ultimately permitted intervention by the State Senate, House of Representatives, Secretary of State, District 21 Senator James T. Hargrett, Jr., and a group of black and Hispanic voters residing in District 21. Record 33, 78; 159 Tr. 25, 30 At a status conference held on July 6, 1995, shortly after we decided v. all parties agreed to the appointment of a mediator to seek resolution of the suit,[2] see Record 78, at 2; 134 Tr. 13, 14, 16 though pretrial proceedings continued during the ensuing mediation. After the mediator declared an impasse in late October, see 166 Tr. 8 the parties continued discussions on their own and on November 2, 1995, filed with the District Court a settlement agreement signed on behalf of all parties except appellant. App. 17-21. The agreement noted that while the defendants and defendantintervenors denied the plaintiffs' claims that District 21 was unconstitutional, all parties to the settlement concurred that "there is a reasonable factual and legal basis for the plaintiffs' claim." The agreement proposed revising District 21 under a new plan, called Plan 386, which would be subject to public comment and, if approved by the District Court after a public hearing, would be used in state elections unless Florida adopted a new plan. District *573 21, as revised in Plan 386, would no longer extend into Polk County or north toward Clearwater, would have a boundary length decreased by 58%, and would include a resident black voting-age population reduced from 45.0% to 36.2%. The proposed district would cover portions of three counties instead of four and continue to include land on both sides of Tampa Bay. Record 169, attachment 4. At a status conference held the same day the parties filed the settlement agreement, the District Court sought and received specific assurances from lawyers for the President of the Senate and the Speaker of the House that they were authorized to represent their respective government bodies in the litigation and enter into the settlement proposed. 180 Tr. 23-24 Appellant argued that the District Court was required to hold Plan 330 unconstitutional before it could adopt a new districting plan, see but the District Court disagreed, noting that "there is simply not a litigable issue with respect to what we have for shorthand purposes referred to as liability and we ought simply then to proceed to resolve the issue of the fairness of this proposed settlement and entertain any objections [concerning it]." The District Court scheduled a hearing on the proposed plan for November 20, giving notice in 13 area newspapers and making details of the plan available for review in the clerk's office. See App. 161. Before the hearing, the settling parties submitted evidence including affidavits and declarations addressing the factors considered in revising District 21, Record 188, and appellant submitted his own remedial plan for a District 21 wholly contained within Hillsborough County, Record 172, at A4. At the hearing, counsel for the State Senate summarized the prehearing filings submitted by proponents of the settlement and the rationale behind the agreement. App. 160-172. The District Court denied appellant's motion for ruling on his motion for summary judgment on the legality of Plan 330, saying that "[i]t makes *574 no difference whether we grant the motion or not. [I]f we granted your motion, we would be in this precise posture we are in now." 3. Appellant then argued that District 21, as redrawn in Plan 386, would still be unconstitutional because only race could explain its contours, see 5-188, and counsel for a former state legislator spoke to the same effect, On March 19, the District Court approved the settlement. See The panel majority first held that it was not obliged to find the existing District 21 unconstitutional in order to approve the settlement. While recognizing the need to "guard against any disingenuous adventures" by litigants, the majority noted that a State should not be deprived of the opportunity to avoid "an expensive and protracted contest and the possibility of an adverse and disruptive adjudication" by a rule insisting on "a public mea culpa " as the sole condition for dispensing with "a dispositive, specific determination of the controlling constitutional issue." and n. 2. To balance the competing interests, the court required a showing of a substantial "evidentiary and legal" basis for the plaintiffs' claim before the settlement would be approved, and it held the standard satisfied. "Each party either states unequivocally that existing District 21 is unconstitutionally configured or concedes, for purposes of settlement, that the plaintiffs have established prima facie unconstitutionality." The majority found that the "boundaries of current District 21 are markedly uneven and, in some respects, extraordinary," and that the district "bears at least some of the conspicuous signs of a racially conscious contrivance," The District Court then turned to the merits of Plan 386 to determine whether its formation had been "dominated by the single-minded focus" on race that it understood to be constitutionally forbidden under 920 F. Supp., at *575 1254. The court observed that the November 20 hearing "produced but two dissenters, plaintiff Lawyer and a former state Senator, both of whom neither presented relevant evidence nor offered germane legal argument." The District Court concluded that a "constitutional objection to the proposed District 21 is not established. In its shape and composition, proposed District 21 is, all said and done, demonstrably benign and satisfactorily tidy, especially given the prevailing geography." The court noted that the new district's percentage of minority residents would approximate the racial features of the region surrounding Tampa Bay better than Plan 330 did, that the district's boundaries would be "less strained and irregular" than those in Plan 330, and that all candidates, regardless of race, would have an opportunity to seek office, with "both a fair chance to win and the usual risk of defeat." 1256. Chief Judge Tjoflat concurred specially. He agreed that Plan 386 was constitutional but thought that the new plan could not be approved without a judicial determination that Plan 330 was unconstitutional, as he concluded it was. at 1256-. We noted probable jurisdiction, and now affirm. II A Appellant argues that the District Court erred in approving the settlement agreement without formally holding Plan 330 unconstitutional, thereby denying the State's legislature and Supreme Court the opportunity to devise a new redistricting plan.[3] See Brief for Appellant 23, 32-33. Appellant *576 relies on in which we recognized that "`reapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court' [and that] [a]bsent evidence that these state branches will fail timely to perform that duty, a federal court must neither affirmatively obstruct state apportionment nor permit federal litigation to be used to impede it." ). Appellant cites for the proposition that when a federal court declares an existing apportionment plan unconstitutional, it should, if possible, afford "a reasonable opportunity for the legislature to meet constitutional requirements by adopting a substitute measure rather than devise and order into effect its own plan." Appellant claims that the District Court's approval of the settlement agreement without first holding Plan 330 unconstitutional impaired the State's interest in exercising "primary responsibility for apportionment of [its] federal congressional and state legislative districts," and had the derivative effect of "eviscerat[ing] the individual rights of" appellant, as a citizen and voter, to "the liberties derived from the diffusion of sovereign power to representative state government," Brief for Appellant 26. The substance of what appellant claims as a right to the benefit of political diffusion is nothing other than the rule declared in the cases he cites, that state redistricting responsibility should be accorded primacy to the extent possible when a federal court exercises remedial power. See 507 U. S., A State should be given the opportunity to make its own redistricting decisions so long as that is practically possible and the State chooses to take the opportunity. *577 When it does take the opportunity, the discretion of the federal court is limited except to the extent that the plan itself runs afoul of federal law. In this case, the State has selected its opportunity by entering into the settlement agreement, which for reasons set out below in Part II—B it had every right to do. And it has availed itself of that opportunity by proposing a plan as embodied in the settlement agreement. There can be no question on the present record that proponents of the plan included counsel authorized to represent the State itself, and there is no reason to suppose that the State's attorney general lacked authority to propose a plan as an incident of his authority to represent the State in this litigation.[4] The evidence, indeed, was entirely in his favor. The participation of counsel for each legislative chamber confirmed both the continuing refusal of the legislature to address the issue in *578 formal session and the authority of the attorney general to propose the settlement plan on the State's behalf.[5] On these facts, the District Court's approval of the settlement agreement was entirely consistent with the principles underlying our cases that have granted relief on the ground that a district court had failed to respect the affected government's entitlement to originate its own redistricting policy. Since the State, through its attorney general, has taken advantage of the option recognized in and to make redistricting decisions in the first instance, there are no reasons in those cases to burden its exercise of choice by requiring a formal adjudication of unconstitutionality. B We find no merit, either, in appellant's apparently distinct claim that, regardless of any effect on the State's districting responsibility, the District Court was bound to adjudicate liability before settlement because appellant did not agree to settle. See Brief for Appellant "It has never been supposed that one party—whether an original party, a party *579 that was joined later, or an intervenor—could preclude other parties from settling their own disputes."[6] While appellant was entitled to present evidence and have his objections heard at the hearing to consider approval of the agreement, he "does not have power to block the decree merely by withholding [his] consent." ; cf.7B C. Wright, A. & M. Kane, Federal Practice and Procedure 1797.1, p. 412 (fact of opposition does not necessitate disapproval of class-action settlement under Federal Rule of Civil Procedure 23). While a settlement agreement subject to court approval in a nonclass action may not impose duties or obligations on an unconsenting party or "dispose" of his claims, see the agreement here did none of those things. It disposed of appellant's claim not in the forbidden sense of cutting him off from a remedy to which he was entitled, but only in the legitimate sense of granting him an element of the very relief he had sought. As a remedy for what appellant claimed to be an unconstitutional plan he had requested the elimination of that plan, and the settlement and decree gave him that relief. To afford him a right to the formality of a decree in addition to the substance of the relief sought would be to allow a sore winner to obscure the point of the suit. In most civil litigation, and in this suit in particular, "the judicial decree is not the end but the means. At the end of the rainbow lies not a judgment, but some action (or cessation of action) by the defendant that the judgment produces The real value of the judicial pronouncement—what makes it a proper judicial *580 resolution of a `case or controversy' rather than an advisory opinion—is in the settling of some dispute which affects the behavior of the defendant towards the plaintiff. " Appellant, of course, wanted something more than being rid of Plan 330, for he wanted a new plan that would be constitutional. But insofar as he would have been entitled to that following a formal decree of the court, he is now in the same position he would have enjoyed if he had had such a decree: his views on the merits of the proposed plan were heard, and his right to attack it in this appeal is entirely unimpaired. To the extent that he claims anything more, he is trying to do what we have previously said he may not do: to demand an adjudication that the State of Florida, represented by the attorney general, could indeed have demanded, see 507 U. S., ; 437 U. S., but instead waived. III The District Court concluded that Plan 386 did not subordinate traditional districting principles to race.[7] See -1255. That finding is subject to review for clear error, see -917, of which we find none. The District Court looked to the shape and composition of District 21 as redrawn in Plan 386 and found them "demonstrably benign and satisfactorily tidy." 920 F. Supp., The district is located entirely in the Tampa Bay area, has an end-to-end distance no greater than that of most Florida *581 Senate districts,[8] and in shape does not stand out as different from numerous other Florida House and Senate districts. See App. 26, 60-75. While District 21 crosses a body of water and encompasses portions of three counties, evidence submitted showed that both features are common characteristics of Florida legislative districts, being products of the State's geography and the fact that 40 Senate districts are superimposed on 67 counties. See[9] Addressing composition, the District Court found that the residents of District 21 "regard themselves as a community." 920 F. Supp., Evidence indicated that District 21 comprises a predominantly urban, low-income population, the poorest of the nine districts in the Tampa Bay region and among the poorest districts in the State, whose white and black members alike share a similarly depressed economic condition, see App. 30-31, 49-51, and interests that reflect it, The fact that District 21 under Plan 386 is not a majority black district, the black voting-age population being 36.2%, supports the District Court's finding that the district is not a "safe" one for black-preferred candidates, but one that "offers to any candidate, without regard to race, the opportunity" to seek and be elected to office. *582 Based on these and other considerations,[10] the District Court concluded that traditional districting principles had not been subordinated to race in drawing revised District 21. Appellant calls this finding clearly erroneous, charging that District 21 encompasses more than one county, crosses a body of water, is irregular in shape, lacks compactness, and contains a percentage of black voters significantly higher than the overall percentage of black voters in Hillsborough, Manatee, and Pinellas Counties. Brief for Appellant 40-45. Appellant's first four points ignore unrefuted evidence showing that on each of these points District 21 is no different from what Florida's traditional districting principles could be expected to produce. See As to appellant's final point, we have never suggested that the percentage of black residents in a district may not exceed the percentage of black residents in any of the counties from which the district is created, and have never recognized similar racial composition of different political districts as being necessary to avoid an inference of racial gerrymandering in any one of them. Since districting can be difficult, after all, just because racial composition varies from place to place, and counties and voting districts do not depend on common principles of size and location, facts about the one do not as such necessarily entail conclusions about the other. In short, the evidence amply supports the trial court's views that race did not predominate over Florida's traditional districting principles in drawing Plan 386. Appellant has provided nothing that calls that conclusion into question, much less that points to any clear error. *583 We accordingly affirm the decision of the District Court. It is so ordered.

Justice Scalia

dissenting

Lawyer v. Department of Justice

1997-06-25

https://www.courtlistener.com/opinion/118141/lawyer-v-department-of-justice/

https://www.courtlistener.com/api/rest/v3/clusters/118141/

1996-088

The Court today affirms a Federal District Court's redrawing of Florida Senate District 21, despite the fact that the District Court never determined that District 21 was unconstitutional, and never gave the State an opportunity to do its own redrawing of the district to remedy whatever unconstitutional features it contained. In my view, the District Court's actions represent an unprecedented intrusion upon state sovereignty. I The District Court held that it could exercise its authority under the Fourteenth Amendment to "compel the nullification and re-establishment of state legislative boundaries" without finding a violation of the Fourteenth Amendment, so long as "the case presents a sufficient evidentiary and legal basis to warrant the bona fide intervention of a federal court into matters typically reserved to a state." 920 F. Supp. 1248, 1251-1252 (MD Fla. 1996). Although acknowledging that the "`[d]efendants and defendant-intervenors deny these assertions [of unconstitutionality],' " id., at 1252-1253, n. 3 (quoting Settlement Agreement), the District Court determined that the claim that District 21 was unconstitutional was "fairly litigable," id., at 1253, n. 3, and found this enough to justify its reapportionment order. The only authority cited by the District Court for the proposition that a court can mandate a remedy without finding liability is Justice O'Connor's concurring opinion in Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 284 (1986). But that opinion has no bearing on the present case. It dealt with the question whether a school board could, consistent with the Constitution, implement an affirmative-action program *584 without first making contemporaneous findings that such a program is justified by specific instances of past discrimination. Id., at 289-291. Quite obviously, whether a State may take voluntary action without first determining that it has violated the law has nothing to do with whether a federal court may impose a remedy without first determining that the State has violated the law. The Court evidently believes that an adjudication of unconstitutionality of District 21 was unnecessary here because the State entered into a consent agreement accepting judicial imposition of Plan 386. For this proposition it relies upon Firefighters v. Cleveland, 478 U.S. 501 (1986), which said that "it is the parties' agreement that serves as the source of the [District Court's] authority to enter . . . judgment . . . ." Id., at 522. However, that passage from Firefighters is of no help to the Court—even putting aside the fact that the "agreement" there at issue, unlike the one here, was an agreement to remedy unlawful conduct (a "pattern of racial discrimination") that had been adjudged, id., at 506, 511— 512.[1]Firefighters was a Title VII action by minority firefighters, alleging that the city discriminated against them in promotions. A union representing the majority of the city's firefighters intervened as a party-plaintiff and objected to the settlement, contending, among other things, that its consent was required in order for the District Court to enter a consent decree. We disagreed. The minority firefighters and the city, we said, could have reached an out-of-court agreement to resolve their dispute. See id., at 522-523, and *585 n. 13. "[T]he choice of an enforcement scheme—whether to rely on contractual remedies or to have an agreement entered as a consent decree—is itself made voluntarily by the parties." Id., at 523. In today's case, by contrast, neither the appellant nor the other original plaintiffs (now appellees) could have concluded a binding out-of-court "redistricting agreement" with representatives of the Florida Legislature, or with the state attorney general—and the Court does not contend otherwise. The Florida Constitution, Art. III, § 16, requires the legislature to draw districts "by joint resolution," and provides no authority for the attorney general to do so.[2] Any "redistricting *586 agreement" entered into by these officials with individual voters would obviously be null and void. And a court decree that does not purport to be in remediation of an adjudged violation of law cannot make it binding. See Firefighters, supra, at 522-523. See also, e. g., Perkins v. Chicago Heights, 47 F.3d 212, 216 (CA7 1995). These principles would suffice to invalidate an unauthorized private agreement as the basis for a federal judicial decree in even the ordinary case, but they should apply even more rigorously to an agreement purportedly supporting a federal judicial decree of state reapportionment, which we have described as an "unwelcome obligation," Connor v. Finch, 431 U.S. 407, 415 (1977), that should be undertaken by a district court only as a last resort, see, e. g., White v. Weiser, 412 U.S. 783 (1973). Indeed, even if it were possible for the Florida Legislature to authorize two of its members to negotiate an apportionment agreement that could be the basis for a federal court decree, one would think that the special solicitude we have shown for preservation of the States' apportionment authority would cause the court to demand clearer credentials on the part of those who purport to speak for the legislature.[3] The District Court asserted that "Florida's House and Senate . . . manifested . . . the authority to consent," 920 F. Supp., at 1251, but it points to no resolution *587 conferring such authority upon the individual legislators before the court; and as to the Senate, at least, there is some evidence no such authority exists. The record contains a letter from State Senator Howard C. Forman to the District Court reading in part as follows: "This letter is intended to communicate to you in the strongest possible terms that the Florida Senate has not agreed to any proposed settlement. As a constitutionally established collegial body, the Florida Senate can agree to nothing without open debate and action by the entire body. As a duly elected Member of the Florida Senate, I have never waived my constitutional duty and responsibility to participate in all Senate matters. And, under no circumstances does any individual Senator, or group of individual Senators, have the right to agree to anything in my name. . . . "Therefore, I challenge any representation that the Florida Senate has agreed to any proposed settlement in this case." Record 152. But in fact all these inquiries into authorization to enter private agreements are supererogatory. Even an authorized private agreement cannot serve as the basis for a federal apportionment decree. We have said explicitly, and in unmistakable terms, that "[f]ederal courts are barred from intervening in state apportionment in the absence of a violation of federal law." Voinovich v. Quilter, 507 U.S. 146, 156 (1993) (emphasis added). As Chief Judge Tjoflat's concurrence below correctly stated, "to enter the judgment in question, the court must find that District 21 is unconstitutional." 920 F. Supp., at 1256-1257. I would adhere to that principle. Finally, I find no merit in the Court's apparent suggestion, ante, at 578-580, that appellant has no standing to complain of this defect. A judicial decree entered without jurisdiction has mooted his suit. Surely that is enough to sustain his appeal. *588 II The District Court's failure to find the pre-existing District 21 unconstitutional is alone enough to require reversal of the judgment. But the District Court committed a second error, in failing to give the Florida Legislature the opportunity to redraw the district before imposing a courtordered solution. We have repeatedly emphasized that federal interference with state districting "represents a serious intrusion on the most vital of local functions," Miller v. Johnson, 515 U.S. 900, 915 (1995), and that "reapportionment[, which] is primarily the duty and responsibility of the State," Chapman v. Meier, 420 U.S. 1, 27 (1975), "`is primarily a matter for legislative consideration and determination,' " Connor v. Finch, supra, at 414 (quoting Reynolds v. Sims, 377 U.S. 533, 586 (1964)). "`[J]udicial relief becomes appropriate,' " we have said, "`only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so.' " White v. Weiser, supra, at 794-795 (quoting Reynolds, supra, at 586). See also Growe v. Emison, 507 U.S. 25, 33-34 (1993); Upham v. Seamon, 456 U.S. 37, 41-42 (1982) (per curiam); McDaniel v. Sanchez, 452 U.S. 130, 142 (1981); Wise v. Lipscomb, 437 U.S. 535, 540 (1978) (opinion of White, J.). The District Court's failure to give Florida a reasonable opportunity to craft its own solution after a judicial finding that the current districting was unconstitutional—or even (since here such a finding was never made) after the judicial finding that a constitutional claim is "fairly litigable"—was most assuredly error. The District Court repeatedly referred to Plan 386 as a "legislative solution," 920 F. Supp., at 1255, and the concurrence described it as a "plan that the Florida legislature has proposed," id., at 1257. But judicial characterization does not overcome reality. The fact that the Speaker of Florida's House of Representatives and the President of Florida's Senate *589 participated in the negotiations and consented to the settlement does not magically convert Plan 386 into a Florida law. The "opportunity to apportion" that our case law requires the state legislature to be afforded is an opportunity to apportion through normal legislative processes, not through courthouse negotiations attended by one member of each House, followed by a court decree. Appellees contend that the District Court actually offered the legislature the opportunity to redistrict, but that the legislature declined. This contention is based upon the fact that the representatives of the Florida Legislature informed the District Court, prior to any proceedings on the merits, that the legislature would likely not sua sponte redraw the districts in response to Miller v. Johnson, supra, and on the status reports filed by the Florida Senate, see ante, at 578, n. 5. But the requisite opportunity that our cases describe is an opportunity to redraw districts after the extant districts have been ruled unconstitutional—not after a Supreme Court case has been announced which may or may not ultimately lead to a ruling that the extant districts are unconstitutional. See, e. g., Growe, supra, at 34; McDaniel, supra, at 142; Reynolds, supra, at 585-586. The State is under no obligation to redistrict unless and until a determination has been made that there has been a violation of federal law. * * * Because the District Court lacked the authority to mandate redistricting without first having found a constitutional violation; and because the District Court failed to give the State an opportunity to redistrict on its own after notice of the constitutional violation (or even after notice of the court's intention to proceed with its own plan), I would reverse the judgment of the District Court and remand for further proceedings. Given my conclusion on appellant's first two challenges to the District Court's judgment, I have no occasion *590 to consider the constitutionality of the court-drawn district, Plan 386. I respectfully dissent.

The Court today affirms a Federal District Court's redrawing of Florida Senate District 21, despite the fact that the District Court never determined that District 21 was unconstitutional, and never gave the State an opportunity to do its own redrawing of the district to remedy whatever unconstitutional features it contained. In my view, the District Court's actions represent an unprecedented intrusion upon state sovereignty. I The District Court held that it could exercise its authority under the Fourteenth Amendment to "compel the nullification and re-establishment of state legislative boundaries" without finding a violation of the Fourteenth Amendment, so long as "the case presents a sufficient evidentiary and legal basis to warrant the bona fide intervention of a federal court into matters typically reserved to a state." Although acknowledging that the "`[d]efendants and defendant-intervenors deny these assertions [of unconstitutionality],' " the District Court determined that the claim that District 21 was unconstitutional was "fairly litigable," and found this enough to justify its reapportionment order. The only authority cited by the District Court for the proposition that a court can mandate a remedy without finding liability is Justice O'Connor's concurring opinion in But that opinion has no bearing on the present case. It dealt with the question whether a school board could, consistent with the Constitution, implement an affirmative-action program *584 without first making contemporaneous findings that such a program is justified by specific instances of past discrimination. Quite obviously, whether a State may take voluntary action without first determining that it has violated the law has nothing to do with whether a federal court may impose a remedy without first determining that the State has violated the law. The Court evidently believes that an adjudication of unconstitutionality of District 21 was unnecessary here because the State entered into a consent agreement accepting judicial imposition of Plan 386. For this proposition it relies upon which said that "it is the parties' agreement that serves as the source of the [District Court's] authority to enter judgment" However, that passage from is of no help to the Court—even putting aside the fact that the "agreement" there at issue, unlike the one here, was an agreement to remedy unlawful conduct (a "pattern of racial discrimination") that had been adjudged, 511— 512.[1] was a Title VII action by minority firefighters, alleging that the city discriminated against them in promotions. A union representing the majority of the city's firefighters intervened as a party-plaintiff and objected to the settlement, contending, among other things, that its consent was required in order for the District Court to enter a consent decree. We disagreed. The minority firefighters and the city, we said, could have reached an out-of-court agreement to resolve their dispute. See -523, and *585 n. 13. "[T]he choice of an enforcement scheme—whether to rely on contractual remedies or to have an agreement entered as a consent decree—is itself made voluntarily by the parties." In today's case, by contrast, neither the appellant nor the other original plaintiffs (now appellees) could have concluded a binding out-of-court "redistricting agreement" with representatives of the Florida Legislature, or with the state attorney general—and the Court does not contend otherwise. The Florida Constitution, Art. III, 16, requires the legislature to draw districts "by joint resolution," and provides no authority for the attorney general to do so.[2] Any "redistricting * agreement" entered into by these officials with individual voters would obviously be null and void. And a court decree that does not purport to be in remediation of an adjudged violation of law cannot make it binding. See -523. See also, e. g., These principles would suffice to invalidate an unauthorized private agreement as the basis for a federal judicial decree in even the ordinary case, but they should apply even more rigorously to an agreement purportedly supporting a federal judicial decree of state reapportionment, which we have described as an "unwelcome obligation," that should be undertaken by a district court only as a last resort, see, e. g., Indeed, even if it were possible for the Florida Legislature to authorize two of its members to negotiate an apportionment agreement that could be the basis for a federal court decree, one would think that the special solicitude we have shown for preservation of the States' apportionment authority would cause the court to demand clearer credentials on the part of those who purport to speak for the legislature.[3] The District Court asserted that "Florida's House and Senate manifested the authority to consent," but it points to no resolution *587 conferring such authority upon the individual legislators before the court; and as to the Senate, at least, there is some evidence no such authority exists. The record contains a letter from State Senator Howard C. Forman to the District Court reading in part as follows: "This letter is intended to communicate to you in the strongest possible terms that the Florida Senate has not agreed to any proposed settlement. As a constitutionally established collegial body, the Florida Senate can agree to nothing without open debate and action by the entire body. As a duly elected Member of the Florida Senate, I have never waived my constitutional duty and responsibility to participate in all Senate matters. And, under no circumstances does any individual Senator, or group of individual Senators, have the right to agree to anything in my name. "Therefore, I challenge any representation that the Florida Senate has agreed to any proposed settlement in this case." Record 152. But in fact all these inquiries into authorization to enter private agreements are supererogatory. Even an authorized private agreement cannot serve as the basis for a federal apportionment decree. We have said explicitly, and in unmistakable terms, that "[f]ederal courts are barred from intervening in state apportionment in the absence of a violation of federal law." As Chief Judge Tjoflat's concurrence below correctly stated, "to enter the judgment in question, the court must find that District 21 is unconstitutional." -1257. I would adhere to that principle. Finally, I find no merit in the Court's apparent suggestion, ante, at 578-580, that appellant has no standing to complain of this defect. A judicial decree entered without jurisdiction has mooted his suit. Surely that is enough to sustain his appeal. *588 II The District Court's failure to find the pre-existing District 21 unconstitutional is alone enough to require reversal of the judgment. But the District Court committed a second error, in failing to give the Florida Legislature the opportunity to redraw the district before imposing a courtordered solution. We have repeatedly emphasized that federal interference with state districting "represents a serious intrusion on the most vital of local functions," and that "reapportionment[, which] is primarily the duty and responsibility of the State," "`is primarily a matter for legislative consideration and determination,' " ). "`[J]udicial relief becomes appropriate,' " we have said, "`only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so.' " (quoting at ). See also ; ; ; The District Court's failure to give Florida a reasonable opportunity to craft its own solution after a judicial finding that the current districting was unconstitutional—or even (since here such a finding was never made) after the judicial finding that a constitutional claim is "fairly litigable"—was most assuredly error. The District Court repeatedly referred to Plan 386 as a "legislative solution," and the concurrence described it as a "plan that the Florida legislature has proposed," But judicial characterization does not overcome reality. The fact that the Speaker of Florida's House of Representatives and the President of Florida's Senate *589 participated in the negotiations and consented to the settlement does not magically convert Plan 386 into a Florida law. The "opportunity to apportion" that our case law requires the state legislature to be afforded is an opportunity to apportion through normal legislative processes, not through courthouse negotiations attended by one member of each House, followed by a court decree. Appellees contend that the District Court actually offered the legislature the opportunity to redistrict, but that the legislature declined. This contention is based upon the fact that the representatives of the Florida Legislature informed the District Court, prior to any proceedings on the merits, that the legislature would likely not sua sponte redraw the districts in response to and on the status reports filed by the Florida Senate, see ante, at 578, n. 5. But the requisite opportunity that our cases describe is an opportunity to redraw districts after the extant districts have been ruled unconstitutional—not after a Supreme Court case has been announced which may or may not ultimately lead to a ruling that the extant districts are unconstitutional. See, e. g., ; at ; at 585-. The State is under no obligation to redistrict unless and until a determination has been made that there has been a violation of federal law. * * * Because the District Court lacked the authority to mandate redistricting without first having found a constitutional violation; and because the District Court failed to give the State an opportunity to redistrict on its own after notice of the constitutional violation (or even after notice of the court's intention to proceed with its own plan), I would reverse the judgment of the District Court and remand for further proceedings. Given my conclusion on appellant's first two challenges to the District Court's judgment, I have no occasion *590 to consider the constitutionality of the court-drawn district, Plan 386. I respectfully dissent.

Justice Kennedy

majority

Wilkinson v. Austin

2005-06-13

https://www.courtlistener.com/opinion/799975/wilkinson-v-austin/

https://www.courtlistener.com/api/rest/v3/clusters/799975/

2004-060

This case involves the process by which Ohio classifies prisoners for placement at its highest security prison, known as a "Supermax" facility. Supermax facilities are maximum-security prisons with highly restrictive conditions, designed to segregate the most dangerous prisoners from the general prison population. We must consider what process the Fourteenth Amendment to the United States Constitution requires Ohio to afford to inmates before assigning them to Supermax. We hold that the procedures Ohio has adopted provide sufficient procedural protection to comply with due process requirements. I The use of Supermax prisons has increased over the last 20 years, in part as a response to the rise in prison gangs and prison violence. See generally U. S. Dept. of Justice, National Institute of Corrections, C. Riveland, Supermax Prisons: Overview and General Considerations 1 (1999), http://www.nicic.org/pubs/1999/014937.pdf (as visited June 9, 2005, and available in Clerk of Court's case file). About 30 States now operate Supermax prisons, in addition to the two somewhat comparable facilities operated by the Federal Government. *214 See Brief for United States as Amicus Curiae 2. In 1998, Ohio opened its only Supermax facility, the Ohio State Penitentiary (OSP), after a riot in one of its maximum-security prisons. OSP has the capacity to house up to 504 inmates in single-inmate cells and is designed to "`separate the most predatory and dangerous prisoners from the rest of the . . . general [prison] population.'" See 189 F. Supp. 2d 719, 723 (ND Ohio 2002) (Austin I) (quoting deposition of R. Wilkinson, pp. 24-25). Conditions at OSP are more restrictive than any other form of incarceration in Ohio, including conditions on its death row or in its administrative control units. The latter are themselves a highly restrictive form of solitary confinement. See Austin I, supra, at 724-725, and n. 5 (citing Ohio Admin. Code § 5120-9-13 (2001) (rescinded 2004)). In the OSP almost every aspect of an inmate's life is controlled and monitored. Inmates must remain in their cells, which measure 7 by 14 feet, for 23 hours per day. A light remains on in the cell at all times, though it is sometimes dimmed, and an inmate who attempts to shield the light to sleep is subject to further discipline. During the one hour per day that an inmate may leave his cell, access is limited to one of two indoor recreation cells. Incarceration at OSP is synonymous with extreme isolation. In contrast to any other Ohio prison, including any segregation unit, OSP cells have solid metal doors with metal strips along their sides and bottoms which prevent conversation or communication with other inmates. All meals are taken alone in the inmate's cell instead of in a common eating area. Opportunities for visitation are rare and in all events are conducted through glass walls. It is fair to say OSP inmates are deprived of almost any environmental or sensory stimuli and of almost all human contact. Aside from the severity of the conditions, placement at OSP is for an indefinite period of time, limited only by an *215 inmate's sentence. For an inmate serving a life sentence, there is no indication how long he may be incarcerated at OSP once assigned there. Austin I, supra, at 740. Inmates otherwise eligible for parole lose their eligibility while incarcerated at OSP. 189 F. Supp. 2d, at 728. Placement at OSP is determined in the following manner: Upon entering the prison system, all Ohio inmates are assigned a numerical security classification from level 1 through level 5, with 1 the lowest security risk and 5 the highest. See Brief for Petitioners 7. The initial security classification is based on numerous factors (e. g., the nature of the underlying offense, criminal history, or gang affiliation) but is subject to modification at any time during the inmate's prison term if, for instance, he engages in misconduct or is deemed a security risk. Ibid. Level 5 inmates are placed in OSP, and levels 1 through 4 inmates are placed at lower security facilities throughout the State. Ibid. Ohio concedes that when OSP first became operational, the procedures used to assign inmates to the facility were inconsistent and undefined. For a time, no official policy governing placement was in effect. See Austin I, supra, at 726-727. Haphazard placements were not uncommon, and some individuals who did not pose high-security risks were designated, nonetheless, for OSP. In an effort to establish guidelines for the selection and classification of inmates suitable for OSP, Ohio issued Department of Rehabilitation and Correction Policy 111-07 (Aug. 31, 1998). This policy has been revised at various points but relevant here are two versions: the "Old Policy" and the "New Policy." The Old Policy took effect on January 28, 1999, but problems with assignment appear to have persisted even under this written set of standards. 189 F. Supp. 2d, at 727-736. After forming a committee to study the matter and retaining a national expert in prison security, Ohio promulgated the New Policy in early 2002. The New Policy provided more guidance regarding *216 the factors to be considered in placement decisions and afforded inmates more procedural protection against erroneous placement at OSP. Although the record is not altogether clear regarding the precise manner in which the New Policy operates, we construe it based on the policy's text, the accompanying forms, and the parties' representations at oral argument and in their briefs. The New Policy appears to operate as follows: A classification review for OSP placement can occur either (1) upon entry into the prison system if the inmate was convicted of certain offenses, e. g., organized crime, or (2) during the term of incarceration if an inmate engages in specified conduct, e. g., leads a prison gang. App. 42-43. The review process begins when a prison official prepares a "Security Designation Long Form" (Long Form). Id., at 20. This three-page form details matters such as the inmate's recent violence, escape attempts, gang affiliation, underlying offense, and other pertinent details. Id., at 20, 38-45. A three-member Classification Committee (Committee) convenes to review the proposed classification and to hold a hearing. At least 48 hours before the hearing, the inmate is provided with written notice summarizing the conduct or offense triggering the review. Id., at 22, 58. At the time of notice, the inmate also has access to the Long Form, which details why the review was initiated. See Tr. of Oral Arg. 13-17. The inmate may attend the hearing, may "offer any pertinent information, explanation and/or objections to [OSP] placement," and may submit a written statement. App. 22. He may not call witnesses. If the Committee does not recommend OSP placement, the process terminates. Id., at 62, 65. See also Brief for Petitioners 9. If the Committee does recommend OSP placement, it documents the decision on a "Classification Committee Report" (CCR), setting forth "the nature of the threat the inmate presents and the committee's reasons for the recommendation," App. 64, as well as a summary of any information *217 presented at the hearing, id., at 59-65. The Committee sends the completed CCR to the warden of the prison where the inmate is housed or, in the case of an inmate just entering the prison system, to another designated official. Id., at 23. If, after reviewing the CCR, the warden (or the designated official) disagrees and concludes that OSP is inappropriate, the process terminates and the inmate is not placed in OSP. If the warden agrees, he indicates his approval on the CCR, provides his reasons, and forwards the annotated CCR to the Bureau of Classification (Bureau) for a final decision. Id., at 64. (The Bureau is a body of Ohio prison officials vested with final decisionmaking authority over all Ohio inmate assignments.) The annotated CCR is served upon the inmate, notifying him of the Committee's and warden's recommendations and reasons. Id., at 65. The inmate has 15 days to file any objections with the Bureau. Ibid. After the 15-day period, the Bureau reviews the CCR and makes a final determination. If it concludes OSP placement is inappropriate, the process terminates. If the Bureau approves the warden's recommendation, the inmate is transferred to OSP. The Bureau's chief notes the reasons for the decision on the CCR, and the CCR is again provided to the inmate. Ibid. Inmates assigned to OSP receive another review within 30 days of their arrival. That review is conducted by a designated OSP staff member, who examines the inmate's file. Id., at 25. If the OSP staff member deems the inmate inappropriately placed, he prepares a written recommendation to the OSP warden that the inmate be transferred to a lower security institution. Brief for Petitioners 9; App. 25. If the OSP warden concurs, he forwards that transfer recommendation to the Bureau for appropriate action. If the inmate is deemed properly placed, he remains in OSP and his placement is reviewed on at least an annual basis according to the initial three-tier classification review process outlined above. Brief for Petitioners 9-10. *218 II This action began when a class of current and former OSP inmates brought suit under Rev. Stat. § 1979, 42 U.S. C. § 1983, in the United States District Court for the Northern District of Ohio against various Ohio prison officials. We refer to the class of plaintiff inmates, respondents here, collectively as "the inmates." We refer to the prison officials, petitioners here, as "Ohio." The inmates' complaint alleged that Ohio's Old Policy, which was in effect at the time the suit was brought, violated due process. In addition the inmates brought a claim that certain conditions at OSP violated the Eighth Amendment's ban on cruel and unusual punishments, but that claim was settled in the District Court. The extent to which the settlement resolved the practices that were the subject of the inmates' Eighth Amendment claim is unclear but, in any event, that issue is not before us. The inmates' suit sought declaratory and injunctive relief. On the eve of trial Ohio promulgated its New Policy and represented that it contained the procedures to be followed in the future. The District Court and Court of Appeals evaluated the adequacy of the New Policy, and it therefore forms the basis for our determination here. After an 8-day trial with extensive evidence, including testimony from expert witnesses, the District Court made findings and conclusions and issued a detailed remedial order. First, relying on this Court's decision in Sandin v. Conner, 515 U.S. 472 (1995), the District Court found that the inmates have a liberty interest in avoiding assignment to OSP. Austin I, 189 F. Supp. 2d, at 738-740. Second, the District Court found Ohio had denied the inmates due process by failing to afford a large number of them notice and an adequate opportunity to be heard before transfer; failing to give inmates sufficient notice of the grounds serving as the basis for their retention at OSP; and failing to give the inmates sufficient opportunity to understand the reasoning and evidence *219 used to retain them at OSP. Id., at 749. Third, the District Court held that, although Ohio's New Policy provided more procedural safeguards than its Old Policy, it was nonetheless inadequate to meet procedural due process requirements. Id., at 736, 750-754. In a separate order it directed extensive modifications to that policy. 204 F. Supp. 2d 1024 (ND Ohio 2002) (Austin II). The modifications the District Court ordered to Ohio's New Policy included both substantive and procedural reforms. The former narrowed the grounds that Ohio could consider in recommending assignment to OSP. For instance, possession of drugs in small amounts, according to the District Court, could not serve as the basis for an OSP assignment. Id., at 1028. The following are some of the procedural modifications the District Court ordered: (1) Finding that the notice provisions of Ohio's New Policy were inadequate, the District Court ordered Ohio to provide the inmates with an exhaustive list of grounds believed to justify placement at OSP and a summary of all evidence upon which the Committee would rely. Matters not so identified, the District Court ordered, could not be considered by the Committee. Id., at 1026. (2) The District Court supplemented the inmate's opportunity to appear before the Committee and to make an oral or written statement by ordering Ohio to allow inmates to present documentary evidence and call witnesses before the Committee, provided that doing so would not be unduly hazardous or burdensome. The District Court further ordered that Ohio must attempt to secure the participation of any witness housed within the prison system. Id., at 1026-1027. (3) Finding the New Policy's provision of a brief statement of reasons for a recommendation of OSP placement inadequate, the District Court ordered the Committee to summarize all evidence supporting its recommendation. Id., at 1027. Likewise, the District Court ordered the Bureau to prepare a "detailed and specific" statement "set[ting] *220 out all grounds" justifying OSP placement including "facts relied upon and reasoning used." Ibid. The statement shall "not use conclusory," "vague," or "boilerplate language," and must be delivered to the inmate within five days. Id., at 1027-1028. (4) The District Court supplemented the New Policy's 30-day and annual review processes, ordering Ohio to notify the inmate twice per year both in writing and orally of his progress toward a security level reduction. Specifically, that notice must "advise the inmate what specific conduct is necessary for that prisoner to be reduced from Level 5 and the amount of time it will take before [Ohio] reduce[s] the inmate's security level classification." Id., at 1028. Ohio appealed. First, it maintained that the inmates lacked a constitutionally protected liberty interest in avoiding placement at OSP. Second, it argued that, even assuming a liberty interest, its New Policy provides constitutionally adequate procedures and thus the District Court's modifications were unnecessary. The Court of Appeals for the Sixth Circuit affirmed the District Court's conclusion that the inmates had a liberty interest in avoiding placement at OSP. 372 F.3d 346, 356 (2004). The Court of Appeals also affirmed the District Court's procedural modifications in their entirety. Id., at 359-360. Finally, it set aside the District Court's far-reaching substantive modifications, concluding they exceeded the scope of the District Court's authority. This last aspect of the Court of Appeals' ruling is not the subject of review in this Court. We granted certiorari to consider what process an inmate must be afforded under the Due Process Clause when he is considered for placement at OSP. 543 U.S. 1032 (2004). For reasons discussed below, we conclude that the inmates have a protected liberty interest in avoiding assignment at OSP. We further hold that the procedures set forth in the New Policy are sufficient to satisfy the Constitution's requirements; it follows, then, that the procedural modifications *221 ordered by the District Court and affirmed by the Court of Appeals were in error. III Withdrawing from the position taken in the Court of Appeals, Ohio in its briefs to this Court conceded that the inmates have a liberty interest in avoiding assignment at OSP. See Pet. for Cert. i; Brief for Petitioners i. The United States, supporting Ohio as amicus curiae, disagrees with Ohio's concession and argues that the inmates have no liberty interest in avoiding assignment to a prison facility with more restrictive conditions of confinement. See Brief for United States 10. At oral argument Ohio initially adhered to its earlier concession, see Tr. of Oral Arg. 5, but when pressed, the State backtracked. See id., at 6-7. We need reach the question of what process is due only if the inmates establish a constitutionally protected liberty interest, so it is appropriate to address this threshold question at the outset. The Fourteenth Amendment's Due Process Clause protects persons against deprivations of life, liberty, or property; and those who seek to invoke its procedural protection must establish that one of these interests is at stake. A liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word "liberty," see, e. g., Vitek v. Jones, 445 U.S. 480, 493-494 (1980) (liberty interest in avoiding involuntary psychiatric treatment and transfer to mental institution), or it may arise from an expectation or interest created by state laws or policies, see, e. g., Wolff v. McDonnell, 418 U.S. 539, 556-558 (1974) (liberty interest in avoiding withdrawal of state-created system of good-time credits). We have held that the Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse conditions of confinement. Meachum v. Fano, 427 U.S. 215, 225 (1976) (no liberty interest arising from Due Process Clause itself in transfer from low- to maximum-security *222 prison because "[c]onfinement in any of the State's institutions is within the normal limits or range of custody which the conviction has authorized the State to impose"). We have also held, however, that a liberty interest in avoiding particular conditions of confinement may arise from state policies or regulations, subject to the important limitations set forth in Sandin v. Conner, 515 U.S. 472 (1995). Sandin involved prisoners' claims to procedural due process protection before placement in segregated confinement for 30 days, imposed as discipline for disruptive behavior. Sandin observed that some of our earlier cases, Hewitt v. Helms, 459 U.S. 460 (1983), in particular, had employed a methodology for identifying state-created liberty interests that emphasized "the language of a particular [prison] regulation" instead of "the nature of the deprivation." Sandin, 515 U. S., at 481. In Sandin, we criticized this methodology as creating a disincentive for States to promulgate procedures for prison management, and as involving the federal courts in the day-to-day management of prisons. Id., at 482-483. For these reasons, we abrogated the methodology of parsing the language of particular regulations. "[T]he search for a negative implication from mandatory language in prisoner regulations has strayed from the real concerns undergirding the liberty protected by the Due Process Clause. The time has come to return to the due process principles we believe were correctly established in and applied in Wolff and Meachum. Following Wolff, we recognize that States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will generally be limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation *223 to the ordinary incidents of prison life." Id., at 483-484 (citations and footnote omitted). After Sandin, it is clear that the touchstone of the inquiry into the existence of a protected, state-created liberty interest in avoiding restrictive conditions of confinement is not the language of regulations regarding those conditions but the nature of those conditions themselves "in relation to the ordinary incidents of prison life." Id., at 484. Applying this refined inquiry, Sandin found no liberty interest protecting against a 30-day assignment to segregated confinement because it did not "present a dramatic departure from the basic conditions of [the inmate's] sentence." Id., at 485. We noted, for example, that inmates in the general population experienced "significant amounts of `lockdown time'" and that the degree of confinement in disciplinary segregation was not excessive. Id., at 486. We did not find, moreover, the short duration of segregation to work a major disruption in the inmate's environment. Ibid. The Sandin standard requires us to determine if assignment to OSP "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id., at 484. In Sandin's wake the Courts of Appeals have not reached consistent conclusions for identifying the baseline from which to measure what is atypical and significant in any particular prison system. Compare, e. g., Beverati v. Smith, 120 F.3d 500, 504 (CA4 1997), and Keenan v. Hall, 83 F.3d 1083, 1089 (CA9 1996), with Hatch v. District of Columbia, 184 F.3d 846, 847 (CADC 1999). See also Wagner v. Hanks, 128 F.3d 1173, 1177 (CA7 1997). This divergence indicates the difficulty of locating the appropriate baseline, an issue that was not explored at length in the briefs. We need not resolve the issue here, however, for we are satisfied that assignment to OSP imposes an atypical and significant hardship under any plausible baseline. For an inmate placed in OSP, almost all human contact is prohibited, even to the point that conversation is not permitted *224 from cell to cell; the light, though it may be dimmed, is on for 24 hours; exercise is for 1 hour per day, but only in a small indoor room. Save perhaps for the especially severe limitations on all human contact, these conditions likely would apply to most solitary confinement facilities, but here there are two added components. First is the duration. Unlike the 30-day placement in Sandin, placement at OSP is indefinite and, after an initial 30-day review, is reviewed just annually. Second is that placement disqualifies an otherwise eligible inmate for parole consideration. Austin I, 189 F. Supp. 2d, at 728. While any of these conditions standing alone might not be sufficient to create a liberty interest, taken together they impose an atypical and significant hardship within the correctional context. It follows that respondents have a liberty interest in avoiding assignment to OSP. Sandin, supra, at 483. OSP's harsh conditions may well be necessary and appropriate in light of the danger that high-risk inmates pose both to prison officials and to other prisoners. See infra, at 227. That necessity, however, does not diminish our conclusion that the conditions give rise to a liberty interest in their avoidance. IV A liberty interest having been established, we turn to the question of what process is due an inmate whom Ohio seeks to place in OSP. Because the requirements of due process are "flexible and cal[l] for such procedural protections as the particular situation demands," Morrissey v. Brewer, 408 U.S. 471, 481 (1972), we generally have declined to establish rigid rules and instead have embraced a framework to evaluate the sufficiency of particular procedures. The framework, established in Mathews v. Eldridge, 424 U.S. 319 (1976), requires consideration of three distinct factors: "First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation *225 of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." Id., at 335. The Court of Appeals upheld the District Court's procedural modifications under the assumption that Sandin altered the first Mathews factor. It reasoned that, "[i]n this first factor, Sandin affects the due process balance: because only those conditions that constitute `atypical and significant hardships' give rise to liberty interests, those interests will necessarily be of a weight requiring greater due process protection." 372 F. 3d, at 358-359. This proposition does not follow from Sandin. Sandin concerned only whether a state-created liberty interest existed so as to trigger Mathews balancing at all. Having found no liberty interest to be at stake, Sandin had no occasion to consider whether the private interest was weighty vis-à-vis the remaining Mathews factors. Applying the three factors set forth in Mathews, we find Ohio's New Policy provides a sufficient level of process. We first consider the significance of the inmate's interest in avoiding erroneous placement at OSP. Prisoners held in lawful confinement have their liberty curtailed by definition, so the procedural protections to which they are entitled are more limited than in cases where the right at stake is the right to be free from confinement at all. See, e. g., Gerstein v. Pugh, 420 U.S. 103 (1975); Wolff, 418 U.S. 539. The private interest at stake here, while more than minimal, must be evaluated, nonetheless, within the context of the prison system and its attendant curtailment of liberties. The second factor addresses the risk of an erroneous placement under the procedures in place, and the probable value, if any, of additional or alternative procedural safeguards. The New Policy provides that an inmate must receive notice *226 of the factual basis leading to consideration for OSP placement and a fair opportunity for rebuttal. Our procedural due process cases have consistently observed that these are among the most important procedural mechanisms for purposes of avoiding erroneous deprivations. See Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442 U.S. 1, 15 (1979); Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 543 (1985); Fuentes v. Shevin, 407 U.S. 67, 80 (1972) ("For more than a century the central meaning of procedural due process has been clear: `Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified'" (quoting Baldwin v. Hale, 1 Wall. 223, 233 (1864))). Requiring officials to provide a brief summary of the factual basis for the classification review and allowing the inmate a rebuttal opportunity safeguards against the inmate's being mistaken for another or singled out for insufficient reason. In addition to having the opportunity to be heard at the Committee stage, Ohio also invites the inmate to submit objections prior to the final level of review. This second opportunity further reduces the possibility of an erroneous deprivation. Although a subsequent reviewer may overturn an affirmative recommendation for OSP placement, the reverse is not true; if one reviewer declines to recommend OSP placement, the process terminates. This avoids one of the problems apparently present under the Old Policy, where, even if two levels of reviewers recommended against placement, a later reviewer could overturn their recommendation without explanation. If the recommendation is OSP placement, Ohio requires that the decisionmaker provide a short statement of reasons. This requirement guards against arbitrary decisionmaking while also providing the inmate a basis for objection before the next decisionmaker or in a subsequent classification review. The statement also serves as a guide for future behavior. See Greenholtz, supra, at 16. *227 As we have noted, Ohio provides multiple levels of review for any decision recommending OSP placement, with power to overturn the recommendation at each level. In addition to these safeguards, Ohio further reduces the risk of erroneous placement by providing for a placement review within 30 days of an inmate's initial assignment to OSP. The third Mathews factor addresses the State's interest. In the context of prison management, and in the specific circumstances of this case, this interest is a dominant consideration. Ohio has responsibility for imprisoning nearly 44,000 inmates. Austin I, 189 F. Supp. 2d, at 727. The State's first obligation must be to ensure the safety of guards and prison personnel, the public, and the prisoners themselves. See Hewitt, 459 U. S., at 473. Prison security, imperiled by the brutal reality of prison gangs, provides the backdrop of the State's interest. Clandestine, organized, fueled by race-based hostility, and committed to fear and violence as a means of disciplining their own members and their rivals, gangs seek nothing less than to control prison life and to extend their power outside prison walls. See Brief for State of California et al. as Amici Curiae 6. Murder of an inmate, a guard, or one of their family members on the outside is a common form of gang discipline and control, as well as a condition for membership in some gangs. See, e. g., United States v. Santiago, 46 F.3d 885, 888 (CA9 1995); United States v. Silverstein, 732 F.2d 1338, 1341 (CA7 1984). Testifying against, or otherwise informing on, gang activities can invite one's own death sentence. It is worth noting in this regard that for prison gang members serving life sentences, some without the possibility of parole, the deterrent effects of ordinary criminal punishment may be substantially diminished. See id., at 1343 ("[T]o many inmates of Marion's Control Unit the price of murder must not be high and to some it must be close to zero"). *228 The problem of scarce resources is another component of the State's interest. The cost of keeping a single prisoner in one of Ohio's ordinary maximum-security prisons is $34,167 per year, and the cost to maintain each inmate at OSP is $49,007 per year. See Austin I, supra, at 734, n. 17. We can assume that Ohio, or any other penal system, faced with costs like these will find it difficult to fund more effective education and vocational assistance programs to improve the lives of the prisoners. It follows that courts must give substantial deference to prison management decisions before mandating additional expenditures for elaborate procedural safeguards when correctional officials conclude that a prisoner has engaged in disruptive behavior. The State's interest must be understood against this background. Were Ohio to allow an inmate to call witnesses or provide other attributes of an adversary hearing before ordering transfer to OSP, both the State's immediate objective of controlling the prisoner and its greater objective of controlling the prison could be defeated. This problem, moreover, is not alleviated by providing an exemption for witnesses who pose a hazard, for nothing in the record indicates simple mechanisms exist to determine when witnesses may be called without fear of reprisal. The danger to witnesses, and the difficulty in obtaining their cooperation, make the probable value of an adversary-type hearing doubtful in comparison to its obvious costs. A balance of the Mathews factors yields the conclusion that Ohio's New Policy is adequate to safeguard an inmate's liberty interest in not being assigned to OSP. Ohio is not, for example, attempting to remove an inmate from free society for a specific parole violation, see, e. g., Morrissey, 408 U. S., at 481, or to revoke good-time credits for specific, serious misbehavior, see, e. g., Wolff, 418 U. S., at 539, where more formal, adversary-type procedures might be useful. Where the inquiry draws more on the experience of prison administrators, and where the State's interest implicates the *229 safety of other inmates and prison personnel, the informal, nonadversary procedures set forth in Greenholtz, 442 U.S. 1 (1979), and Hewitt v. Helms, supra, provide the appropriate model. Greenholtz, supra, at 16 (level of process due for inmates being considered for release on parole includes opportunity to be heard and notice of any adverse decision); Hewitt, supra, at 473-476 (level of process due for inmates being considered for transfer to administrative segregation includes some notice of charges and an opportunity to be heard). Although Sandin abrogated Greenholtz's and Hewitt's methodology for establishing the liberty interest, these cases remain instructive for their discussion of the appropriate level of procedural safeguards. Ohio's New Policy provides informal, nonadversary procedures comparable to those we upheld in Greenholtz and Hewitt, and no further procedural modifications are necessary in order to satisfy due process under the Mathews test. Neither the District Court nor the Court of Appeals should have ordered the New Policy altered. The effect of the Prison Litigation Reform Act of 1995, in particular 18 U.S. C. § 3626(a)(1)(A), in this case has not been discussed at any length in the briefs. In view of our disposition it is unnecessary to address its application here. Prolonged confinement in Supermax may be the State's only option for the control of some inmates, and claims alleging violation of the Eighth Amendment's prohibition of cruel and unusual punishments were resolved, or withdrawn, by settlement in an early phase of this case. Here, any claim of excessive punishment in individual circumstances is not before us. The complaint challenged OSP assignments under the Old Policy, and the unwritten policies that preceded it, and alleged injuries resulting from those systems. Ohio conceded that assignments made under the Old Policy were, to say the least, imprecise. The District Court found constitutional violations had arisen under those earlier versions, and held *230 that the New Policy would produce many of the same constitutional problems. Austin I, 189 F. Supp. 2d, at 749-754. We now hold that the New Policy as described in this opinion strikes a constitutionally permissible balance between the factors of the Mathews framework. If an inmate were to demonstrate that the New Policy did not in practice operate in this fashion, resulting in a cognizable injury, that could be the subject of an appropriate future challenge. On remand, the Court of Appeals, or the District Court, may consider in the first instance what, if any, prospective relief is still a necessary and appropriate remedy for due process violations under Ohio's previous policies. Any such relief must, of course, satisfy the conditions set forth in 18 U.S. C. § 3626(a)(1)(A). * * * The Court of Appeals was correct to find the inmates possess a liberty interest in avoiding assignment at OSP. The Court of Appeals was incorrect, however, to sustain the procedural modifications ordered by the District Court. The portion of the Court of Appeals' opinion reversing the District Court's substantive modifications was not the subject of review upon certiorari and is unaltered by our decision. The judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

This case involves the process by which Ohio classifies prisoners for placement at its highest security prison, known as a "Supermax" facility. Supermax facilities are maximum-security prisons with highly restrictive conditions, designed to segregate the most dangerous prisoners from the general prison population. We must consider what process the Fourteenth Amendment to the United States Constitution requires Ohio to afford to inmates before assigning them to Supermax. We hold that the procedures Ohio has adopted provide sufficient procedural protection to comply with due process requirements. The use of Supermax prisons has increased over the last 20 years, in part as a response to the rise in prison gangs and prison violence. See generally U. S. Dept. of Justice, National nstitute of Corrections, C. Riveland, Supermax Prisons: Overview and General Considerations 1 http://www.nicic.org/pubs//014937.pdf (as visited June 9, 2005, and available in Clerk of Court's case file). About 30 States now operate Supermax prisons, in addition to the two somewhat comparable facilities operated by the Federal Government. *214 See Brief for United States as Amicus Curiae 2. n 1998, Ohio opened its only Supermax facility, the Ohio State Penitentiary (OSP), after a riot in one of its maximum-security prisons. OSP has the capacity to house up to inmates in single-inmate cells and is designed to "`separate the most predatory and dangerous prisoners from the rest of the general [prison] population.'" See (quoting deposition of R. Wilkinson, pp. 24-25). Conditions at OSP are more restrictive than any other form of incarceration in Ohio, including conditions on its death row or in its administrative control units. The latter are themselves a highly restrictive form of solitary confinement. See Austin and n. 5 (citing Ohio Admin. Code 5120-9-13 (2001) ). n the OSP almost every aspect of an inmate's life is controlled and monitored. nmates must remain in their cells, which measure 7 by 14 feet, for 23 hours per day. A light remains on in the cell at all times, though it is sometimes dimmed, and an inmate who attempts to shield the light to sleep is subject to further discipline. During the one hour per day that an inmate may leave his cell, access is limited to one of two indoor recreation cells. ncarceration at OSP is synonymous with extreme isolation. n contrast to any other Ohio prison, including any segregation unit, OSP cells have solid metal doors with metal strips along their sides and bottoms which prevent conversation or communication with other inmates. All meals are taken alone in the inmate's cell instead of in a common eating area. Opportunities for visitation are rare and in all events are conducted through glass walls. t is fair to say OSP inmates are deprived of almost any environmental or sensory stimuli and of almost all human contact. Aside from the severity of the conditions, placement at OSP is for an indefinite period of time, limited only by an *2 inmate's sentence. For an inmate serving a life sentence, there is no indication how long he may be incarcerated at OSP once assigned there. Austin nmates otherwise eligible for parole lose their eligibility while incarcerated at Placement at OSP is determined in the following manner: Upon entering the prison system, all Ohio inmates are assigned a numerical security classification from level 1 through level 5, with 1 the lowest security risk and 5 the highest. See Brief for Petitioners 7. The initial security classification is based on numerous factors (e. g., the nature of the underlying offense, criminal history, or gang affiliation) but is subject to modification at any time during the inmate's prison term if, for instance, he engages in misconduct or is deemed a security risk. bid. Level 5 inmates are placed in OSP, and levels 1 through 4 inmates are placed at lower security facilities throughout the State. bid. Ohio concedes that when OSP first became operational, the procedures used to assign inmates to the facility were inconsistent and undefined. For a time, no official policy governing placement was in effect. See Austin Haphazard placements were not uncommon, and some individuals who did not pose high-security risks were designated, nonetheless, for n an effort to establish guidelines for the selection and classification of inmates suitable for OSP, Ohio issued Department of Rehabilitation and Correction Policy 111-07 (Aug. 31, 1998). This policy has been revised at various points but relevant here are two versions: the "Old Policy" and the "New Policy." The Old Policy took effect on January 28, but problems with assignment appear to have persisted even under this written set of standards. -736. After forming a committee to study the matter and retaining a national expert in prison security, Ohio promulgated the New Policy in early The New Policy provided more guidance regarding *216 the factors to be considered in placement decisions and afforded inmates more procedural protection against erroneous placement at Although the record is not altogether clear regarding the precise manner in which the New Policy operates, we construe it based on the policy's text, the accompanying forms, and the parties' representations at oral argument and in their briefs. The New Policy appears to operate as follows: A classification review for OSP placement can occur either (1) upon entry into the prison system if the inmate was convicted of certain offenses, e. g., organized crime, or (2) during the term of incarceration if an inmate engages in specified conduct, e. g., leads a prison gang. App. 42-43. The review process begins when a prison official prepares a "Security Designation Long Form" (Long Form). d., This three-page form details matters such as the inmate's recent violence, escape attempts, gang affiliation, underlying offense, and other pertinent details. d., 38-45. A three-member Classification Committee (Committee) convenes to review the proposed classification and to hold a hearing. At least 48 hours before the hearing, the inmate is provided with written notice summarizing the conduct or offense triggering the review. d., At the time of notice, the inmate also has access to the Long Form, which details why the review was initiated. See Tr. of Oral Arg. 13-17. The inmate may attend the hearing, may "offer any pertinent information, explanation and/or objections to [OSP] placement," and may submit a written statement. App. 22. He may not call witnesses. f the Committee does not recommend OSP placement, the process terminates. d., See also Brief for Petitioners 9. f the Committee does recommend OSP placement, it documents the decision on a "Classification Committee Report" (CCR), setting forth "the nature of the threat the inmate presents and the committee's reasons for the recommendation," App. 64, as well as a summary of any information *217 presented at the hearing, The Committee sends the completed CCR to the warden of the prison where the inmate is housed or, in the case of an inmate just entering the prison system, to another designated official. d., f, after reviewing the CCR, the warden (or the designated official) disagrees and concludes that OSP is inappropriate, the process terminates and the inmate is not placed in f the warden agrees, he indicates his approval on the CCR, provides his reasons, and forwards the annotated CCR to the Bureau of Classification (Bureau) for a final decision. d., (The Bureau is a body of Ohio prison officials vested with final decisionmaking authority over all Ohio inmate assignments.) The annotated CCR is served upon the inmate, notifying him of the Committee's and warden's recommendations and reasons. d., The inmate has days to file any objections with the Bureau. bid. After the -day period, the Bureau reviews the CCR and makes a final determination. f it concludes OSP placement is inappropriate, the process terminates. f the Bureau approves the warden's recommendation, the inmate is transferred to The Bureau's chief notes the reasons for the decision on the CCR, and the CCR is again provided to the inmate. bid. nmates assigned to OSP receive another review within 30 days of their arrival. That review is conducted by a designated OSP staff member, who examines the inmate's file. d., f the OSP staff member deems the inmate inappropriately placed, he prepares a written recommendation to the OSP warden that the inmate be transferred to a lower security institution. Brief for Petitioners 9; App. 25. f the OSP warden concurs, he forwards that transfer recommendation to the Bureau for appropriate action. f the inmate is deemed properly placed, he remains in OSP and his placement is reviewed on at least an annual basis according to the initial three-tier classification review process outlined above. Brief for Petitioners 9-10. *218 This action began when a class of current and former OSP inmates brought suit under Rev. Stat. 1979, 42 U.S. C. 1983, in the United States District Court for the Northern District of Ohio against various Ohio prison officials. We refer to the class of plaintiff inmates, respondents here, collectively as "the inmates." We refer to the prison officials, petitioners here, as "Ohio." The inmates' complaint alleged that Ohio's Old Policy, which was in effect at the time the suit was brought, violated due process. n addition the inmates brought a claim that certain conditions at OSP violated the Eighth Amendment's ban on cruel and unusual punishments, but that claim was settled in the District Court. The extent to which the settlement resolved the practices that were the subject of the inmates' Eighth Amendment claim is unclear but, in any event, that issue is not before us. The inmates' suit sought declaratory and injunctive relief. On the eve of trial Ohio promulgated its New Policy and represented that it contained the procedures to be followed in the future. The District Court and Court of Appeals evaluated the adequacy of the New Policy, and it therefore forms the basis for our determination here. After an 8-day trial with extensive evidence, including testimony from expert witnesses, the District Court made findings and conclusions and issued a detailed remedial order. First, relying on this Court's decision in the District Court found that the inmates have a liberty interest in avoiding assignment to Austin -740. Second, the District Court found Ohio had denied the inmates due process by failing to afford a large number of them notice and an adequate opportunity to be heard before transfer; failing to give inmates sufficient notice of the grounds serving as the basis for their retention at OSP; and failing to give the inmates sufficient opportunity to understand the reasoning and evidence *219 used to retain them at d., Third, the District Court held that, although Ohio's New Policy provided more procedural safeguards than its Old Policy, it was nonetheless inadequate to meet procedural due process requirements. d., n a separate order it directed extensive modifications to that policy. (Austin ). The modifications the District Court ordered to Ohio's New Policy included both substantive and procedural reforms. The former narrowed the grounds that Ohio could consider in recommending assignment to For instance, possession of drugs in small amounts, according to the District Court, could not serve as the basis for an OSP assignment. d., The following are some of the procedural modifications the District Court ordered: (1) Finding that the notice provisions of Ohio's New Policy were inadequate, the District Court ordered Ohio to provide the inmates with an exhaustive list of grounds believed to justify placement at OSP and a summary of all evidence upon which the Committee would rely. Matters not so identified, the District Court ordered, could not be considered by the Committee. d., (2) The District Court supplemented the inmate's opportunity to appear before the Committee and to make an oral or written statement by ordering Ohio to allow inmates to present documentary evidence and call witnesses before the Committee, provided that doing so would not be unduly hazardous or burdensome. The District Court further ordered that Ohio must attempt to secure the participation of any witness housed within the prison system. d., -1027. (3) Finding the New Policy's provision of a brief statement of reasons for a recommendation of OSP placement inadequate, the District Court ordered the Committee to summarize all evidence supporting its recommendation. d., Likewise, the District Court ordered the Bureau to prepare a "detailed and specific" statement "set[ting] *220 out all grounds" justifying OSP placement including "facts relied upon and reasoning used." bid. The statement shall "not use conclusory," "vague," or "boilerplate language," and must be delivered to the inmate within five days. d., -1028. (4) The District Court supplemented the New Policy's 30-day and annual review processes, ordering Ohio to notify the inmate twice per year both in writing and orally of his progress toward a security level reduction. Specifically, that notice must "advise the inmate what specific conduct is necessary for that prisoner to be reduced from Level 5 and the amount of time it will take before [Ohio] reduce[s] the inmate's security level classification." d., Ohio appealed. First, it maintained that the inmates lacked a constitutionally protected liberty interest in avoiding placement at Second, it argued that, even assuming a liberty interest, its New Policy provides constitutionally adequate procedures and thus the District Court's modifications were unnecessary. The Court of Appeals for the Sixth Circuit affirmed the District Court's conclusion that the inmates had a liberty interest in avoiding placement at The Court of Appeals also affirmed the District Court's procedural modifications in their entirety. d., Finally, it set aside the District Court's far-reaching substantive modifications, concluding they exceeded the scope of the District Court's authority. This last aspect of the Court of Appeals' ruling is not the subject of review in this Court. We granted certiorari to consider what process an inmate must be afforded under the Due Process Clause when he is considered for placement at For reasons discussed below, we conclude that the inmates have a protected liberty interest in avoiding assignment at We further hold that the procedures set forth in the New Policy are sufficient to satisfy the Constitution's requirements; it follows, then, that the procedural modifications *221 ordered by the District Court and affirmed by the Court of Appeals were in error. Withdrawing from the position taken in the Court of Appeals, Ohio in its briefs to this Court conceded that the inmates have a liberty interest in avoiding assignment at See Pet. for Cert. i; Brief for Petitioners i. The United States, supporting Ohio as amicus curiae, disagrees with Ohio's concession and argues that the inmates have no liberty interest in avoiding assignment to a prison facility with more restrictive conditions of confinement. See Brief for United States 10. At oral argument Ohio initially adhered to its earlier concession, see Tr. of Oral Arg. 5, but when pressed, the State backtracked. See We need reach the question of what process is due only if the inmates establish a constitutionally protected liberty interest, so it is appropriate to address this threshold question at the outset. The Fourteenth Amendment's Due Process Clause protects persons against deprivations of life, liberty, or property; and those who seek to invoke its procedural protection must establish that one of these interests is at stake. A liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word "liberty," see, e. g., or it may arise from an expectation or interest created by state laws or policies, see, e. g., We have held that the Constitution itself does not give rise to a liberty interest in avoiding transfer to more adverse conditions of confinement. We have also held, however, that a liberty interest in avoiding particular conditions of confinement may arise from state policies or regulations, subject to the important limitations set forth in involved prisoners' claims to procedural due process protection before placement in segregated confinement for 30 days, imposed as discipline for disruptive behavior. observed that some of our earlier cases, in particular, had employed a methodology for identifying state-created liberty interests that emphasized "the language of a particular [prison] regulation" instead of "the nature of the deprivation." n we criticized this methodology as creating a disincentive for States to promulgate procedures for prison management, and as involving the federal courts in the day-to-day management of prisons. d., For these reasons, we abrogated the methodology of parsing the language of particular regulations. "[T]he search for a negative implication from mandatory language in prisoner regulations has strayed from the real concerns undergirding the liberty protected by the Due Process Clause. The time has come to return to the due process principles we believe were correctly established in and applied in and Meachum. Following we recognize that States may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interests will generally be limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation *223 to the ordinary incidents of prison life." d., After it is clear that the touchstone of the inquiry into the existence of a protected, state-created liberty interest in avoiding restrictive conditions of confinement is not the language of regulations regarding those conditions but the nature of those conditions themselves "in relation to the ordinary incidents of prison life." d., Applying this refined inquiry, found no liberty interest protecting against a 30-day assignment to segregated confinement because it did not "present a dramatic departure from the basic conditions of [the inmate's] sentence." d., We noted, for example, that inmates in the general population experienced "significant amounts of `lockdown time'" and that the degree of confinement in disciplinary segregation was not excessive. d., We did not find, moreover, the short duration of segregation to work a major disruption in the inmate's environment. bid. The standard requires us to determine if assignment to OSP "imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." d., n 's wake the Courts of Appeals have not reached consistent conclusions for identifying the baseline from which to measure what is atypical and significant in any particular prison system. Compare, e. g., and with See also This divergence indicates the difficulty of locating the appropriate baseline, an issue that was not explored at length in the briefs. We need not resolve the issue here, however, for we are satisfied that assignment to OSP imposes an atypical and significant hardship under any plausible baseline. For an inmate placed in OSP, almost all human contact is prohibited, even to the point that conversation is not permitted *224 from cell to cell; the light, though it may be dimmed, is on for 24 hours; exercise is for 1 hour per day, but only in a small indoor room. Save perhaps for the especially severe limitations on all human contact, these conditions likely would apply to most solitary confinement facilities, but here there are two added components. First is the duration. Unlike the 30-day placement in placement at OSP is indefinite and, after an initial 30-day review, is reviewed just annually. Second is that placement disqualifies an otherwise eligible inmate for parole consideration. Austin While any of these conditions standing alone might not be sufficient to create a liberty interest, taken together they impose an atypical and significant hardship within the correctional context. t follows that respondents have a liberty interest in avoiding assignment to OSP's harsh conditions may well be necessary and appropriate in light of the danger that high-risk inmates pose both to prison officials and to other prisoners. See infra, at 227. That necessity, however, does not diminish our conclusion that the conditions give rise to a liberty interest in their avoidance. V A liberty interest having been established, we turn to the question of what process is due an inmate whom Ohio seeks to place in Because the requirements of due process are "flexible and cal[l] for such procedural protections as the particular situation demands," we generally have declined to establish rigid rules and instead have embraced a framework to evaluate the sufficiency of particular procedures. The framework, established in requires consideration of three distinct factors: "First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation * of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." d., The Court of Appeals upheld the District Court's procedural modifications under the assumption that altered the first Mathews factor. t reasoned that, "[i]n this first factor, affects the due process balance: because only those conditions that constitute `atypical and significant hardships' give rise to liberty interests, those interests will necessarily be of a weight requiring greater due process protection." -359. This proposition does not follow from concerned only whether a state-created liberty interest existed so as to trigger Mathews balancing at all. Having found no liberty interest to be at stake, had no occasion to consider whether the private interest was weighty vis-à-vis the remaining Mathews factors. Applying the three factors set forth in Mathews, we find Ohio's New Policy provides a sufficient level of process. We first consider the significance of the inmate's interest in avoiding erroneous placement at Prisoners held in lawful confinement have their liberty curtailed by definition, so the procedural protections to which they are entitled are more limited than in cases where the right at stake is the right to be free from confinement at all. See, e. g., ; The private interest at stake here, while more than minimal, must be evaluated, nonetheless, within the context of the prison system and its attendant curtailment of liberties. The second factor addresses the risk of an erroneous placement under the procedures in place, and the probable value, if any, of additional or alternative procedural safeguards. The New Policy provides that an inmate must receive notice *226 of the factual basis leading to consideration for OSP placement and a fair opportunity for rebuttal. Our procedural due process cases have consistently observed that these are among the most important procedural mechanisms for purposes of avoiding erroneous deprivations. See v. nmates of Neb. Penal and Correctional Complex, ; Cleveland Bd. of ; Requiring officials to provide a brief summary of the factual basis for the classification review and allowing the inmate a rebuttal opportunity safeguards against the inmate's being mistaken for another or singled out for insufficient reason. n addition to having the opportunity to be heard at the Committee stage, Ohio also invites the inmate to submit objections prior to the final level of review. This second opportunity further reduces the possibility of an erroneous deprivation. Although a subsequent reviewer may overturn an affirmative recommendation for OSP placement, the reverse is not true; if one reviewer declines to recommend OSP placement, the process terminates. This avoids one of the problems apparently present under the Old Policy, where, even if two levels of reviewers recommended against placement, a later reviewer could overturn their recommendation without explanation. f the recommendation is OSP placement, Ohio requires that the decisionmaker provide a short statement of reasons. This requirement guards against arbitrary decisionmaking while also providing the inmate a basis for objection before the next decisionmaker or in a subsequent classification review. The statement also serves as a guide for future behavior. See *227 As we have noted, Ohio provides multiple levels of review for any decision recommending OSP placement, with power to overturn the recommendation at each level. n addition to these safeguards, Ohio further reduces the risk of erroneous placement by providing for a placement review within 30 days of an inmate's initial assignment to The third Mathews factor addresses the State's interest. n the context of prison management, and in the specific circumstances of this case, this interest is a dominant consideration. Ohio has responsibility for imprisoning nearly 44,000 inmates. Austin The State's first obligation must be to ensure the safety of guards and prison personnel, the public, and the prisoners themselves. See Prison security, imperiled by the brutal reality of prison gangs, provides the backdrop of the State's interest. Clandestine, organized, fueled by race-based hostility, and committed to fear and violence as a means of disciplining their own members and their rivals, gangs seek nothing less than to control prison life and to extend their power outside prison walls. See Brief for State of California et al. as Amici Curiae 6. Murder of an inmate, a guard, or one of their family members on the outside is a common form of gang discipline and control, as well as a condition for membership in some gangs. See, e. g., United ; United Testifying against, or otherwise informing on, gang activities can invite one's own death sentence. t is worth noting in this regard that for prison gang members serving life sentences, some without the possibility of parole, the deterrent effects of ordinary criminal punishment may be substantially diminished. See *228 The problem of scarce resources is another component of the State's interest. The cost of keeping a single prisoner in one of Ohio's ordinary maximum-security prisons is $34,167 per year, and the cost to maintain each inmate at OSP is $49,007 per year. See Austin We can assume that Ohio, or any other penal system, faced with costs like these will find it difficult to fund more effective education and vocational assistance programs to improve the lives of the prisoners. t follows that courts must give substantial deference to prison management decisions before mandating additional expenditures for elaborate procedural safeguards when correctional officials conclude that a prisoner has engaged in disruptive behavior. The State's interest must be understood against this background. Were Ohio to allow an inmate to call witnesses or provide other attributes of an adversary hearing before ordering transfer to OSP, both the State's immediate objective of controlling the prisoner and its greater objective of controlling the prison could be defeated. This problem, moreover, is not alleviated by providing an exemption for witnesses who pose a hazard, for nothing in the record indicates simple mechanisms exist to determine when witnesses may be called without fear of reprisal. The danger to witnesses, and the difficulty in obtaining their cooperation, make the probable value of an adversary-type hearing doubtful in comparison to its obvious costs. A balance of the Mathews factors yields the conclusion that Ohio's New Policy is adequate to safeguard an inmate's liberty interest in not being assigned to Ohio is not, for example, attempting to remove an inmate from free society for a specific parole violation, see, e. g., 408 U. S., at or to revoke good-time credits for specific, serious misbehavior, see, e. g., where more formal, adversary-type procedures might be useful. Where the inquiry draws more on the experience of prison administrators, and where the State's interest implicates the *229 safety of other inmates and prison personnel, the informal, nonadversary procedures set forth in and provide the appropriate model. ; Although abrogated 's and 's methodology for establishing the liberty interest, these cases remain instructive for their discussion of the appropriate level of procedural safeguards. Ohio's New Policy provides informal, nonadversary procedures comparable to those we upheld in and and no further procedural modifications are necessary in order to satisfy due process under the Mathews test. Neither the District Court nor the Court of Appeals should have ordered the New Policy altered. The effect of the Prison Litigation Reform Act of in particular 18 U.S. C. 3626(a)(1)(A), in this case has not been discussed at any length in the briefs. n view of our disposition it is unnecessary to address its application here. Prolonged confinement in Supermax may be the State's only option for the control of some inmates, and claims alleging violation of the Eighth Amendment's prohibition of cruel and unusual punishments were resolved, or withdrawn, by settlement in an early phase of this case. Here, any claim of excessive punishment in individual circumstances is not before us. The complaint challenged OSP assignments under the Old Policy, and the unwritten policies that preceded it, and alleged injuries resulting from those systems. Ohio conceded that assignments made under the Old Policy were, to say the least, imprecise. The District Court found constitutional violations had arisen under those earlier versions, and held *230 that the New Policy would produce many of the same constitutional problems. Austin 189 F. Supp. 2d, -754. We now hold that the New Policy as described in this opinion strikes a constitutionally permissible balance between the factors of the Mathews framework. f an inmate were to demonstrate that the New Policy did not in practice operate in this fashion, resulting in a cognizable injury, that could be the subject of an appropriate future challenge. On remand, the Court of Appeals, or the District Court, may consider in the first instance what, if any, prospective relief is still a necessary and appropriate remedy for due process violations under Ohio's previous policies. Any such relief must, of course, satisfy the conditions set forth in 18 U.S. C. 3626(a)(1)(A). * * * The Court of Appeals was correct to find the inmates possess a liberty interest in avoiding assignment at The Court of Appeals was incorrect, however, to sustain the procedural modifications ordered by the District Court. The portion of the Court of Appeals' opinion reversing the District Court's substantive modifications was not the subject of review upon certiorari and is unaltered by our decision. The judgment of the Court of Appeals is affirmed in part and reversed in part, and the case is remanded for further proceedings consistent with this opinion. t is so ordered.

per_curiam

per_curiam

Purkett v. Elem

1995-05-15

https://www.courtlistener.com/opinion/117934/purkett-v-elem/

https://www.courtlistener.com/api/rest/v3/clusters/117934/

1994-058

Respondent was convicted of second-degree robbery in a Missouri court. During jury selection, he objected to the prosecutor's use of peremptory challenges to strike two black men from the jury panel, an objection arguably based on Batson v. Kentucky, 476 U.S. 79 (1986). The prosecutor explained his strikes: "I struck [juror] number twenty-two because of his long hair. He had long curly hair. He had the longest hair of anybody on the panel by far. He appeared to me to not be a good juror for that fact, the fact that he had long hair hanging down shoulder length, curly, unkempt hair. Also, he had a mustache and a goatee type beard. And juror number twenty-four also has a mustache and goatee type beard. Those are the only two people on the jury . . . with the facial hair . . . . And I don't like the way they looked, with the way the hair is cut, both of them. And the mustaches and the beards look suspicious to me." App. to Pet. for Cert. A-41. The prosecutor further explained that he feared that juror number 24, who had had a sawed-off shotgun pointed at him during a supermarket robbery, would believe that "to have a robbery you have to have a gun, and there is no gun in this case." Ibid. The state trial court, without explanation, overruled respondent's objection and empaneled the jury. On direct appeal, respondent renewed his Batson claim. The Missouri Court of Appeals affirmed, finding that the "state's explanation constituted a legitimate `hunch' " and that "[t]he circumstances fail[ed] to raise the necessary inference of racial discrimination." State v. Elem, 747 S.W.2d 772, 775 (Mo. App. 1988). Respondent then filed a petition for habeas corpus under 28 U.S. C. § 2254, asserting this and other claims. Adopting the Magistrate Judge's report and recommendation, the District *767 Court concluded that the Missouri courts' determination that there had been no purposeful discrimination was a factual finding entitled to a presumption of correctness under § 2254(d). Since the finding had support in the record, the District Court denied respondent's claim. The Court of Appeals for the Eighth Circuit reversed and remanded with instructions to grant the writ of habeas corpus. It said: "[W]here the prosecution strikes a prospective juror who is a member of the defendant's racial group, solely on the basis of factors which are facially irrelevant to the question of whether that person is qualified to serve as a juror in the particular case, the prosecution must at least articulate some plausible race-neutral reason for believing those factors will somehow affect the person's ability to perform his or her duties as a juror. In the present case, the prosecutor's comments, `I don't like the way [he] look[s], with the way the hair is cut. . . . And the mustach[e] and the bear[d] look suspicious to me,' do not constitute such legitimate race-neutral reasons for striking juror 22." 25 F.3d 679, 683 (1994). It concluded that the "prosecution's explanation for striking juror 22 . . . was pretextual," and that the state trial court had "clearly erred" in finding that striking juror number 22 had not been intentional discrimination. Id., at 684. Under our Batson jurisprudence, once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a raceneutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination. Hernandez v. New York, 500 U.S. 352, 358-359 (1991) (plurality opinion); id., at 375 (O'Connor, J., concurring in judgment); Batson, supra, at 96-98. The *768 second step of this process does not demand an explanation that is persuasive, or even plausible. "At this [second] step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral." Hernandez, 500 U. S., at 360 (plurality opinion); id., at 374 (O'Connor, J., concurring in judgment). The Court of Appeals erred by combining Batson `s second and third steps into one, requiring that the justification tendered at the second step be not just neutral but also at least minimally persuasive, i. e., a "plausible" basis for believing that "the person's ability to perform his or her duties as a juror" will be affected. 25 F.3d, at 683. It is not until the third step that the persuasiveness of the justification becomes relevant—the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination. Batson, supra, at 98; Hernandez, supra, at 359 (plurality opinion). At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination. But to say that a trial judge may choose to disbelieve a silly or superstitious reason at step three is quite different from saying that a trial judge must terminate the inquiry at step two when the race-neutral reason is silly or superstitious. The latter violates the principle that the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. Cf. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 511 (1993). The Court of Appeals appears to have seized on our admonition in Batson that to rebut a prima facie case, the proponent of a strike "must give a `clear and reasonably specific' explanation of his `legitimate reasons' for exercising the challenges," Batson, supra, at 98, n. 20 (quoting Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 258 (1981)), and that the reason must be "related to the particular case *769 to be tried," 476 U.S., at 98. See 25 F.3d, at 682, 683. This warning was meant to refute the notion that a prosecutor could satisfy his burden of production by merely denying that he had a discriminatory motive or by merely affirming his good faith. What it means by a "legitimate reason" is not a reason that makes sense, but a reason that does not deny equal protection. See Hernandez, supra, at 359; cf. Burdine, supra, at 255 ("The explanation provided must be legally sufficient to justify a judgment for the defendant"). The prosecutor's proffered explanation in this case—that he struck juror number 22 because he had long, unkempt hair, a mustache, and a beard—is race neutral and satisfies the prosecution's step two burden of articulating a nondiscriminatory reason for the strike. "The wearing of beards is not a characteristic that is peculiar to any race." EEOC v. Greyhound Lines, Inc., 635 F.2d 188, 190, n. 3 (CA3 1980). And neither is the growing of long, unkempt hair. Thus, the inquiry properly proceeded to step three, where the state court found that the prosecutor was not motivated by discriminatory intent. In habeas proceedings in federal courts, the factual findings of state courts are presumed to be correct, and may be set aside, absent procedural error, only if they are "not fairly supported by the record." 28 U.S. C. § 2254(d)(8). See Marshall v. Lonberger, 459 U.S. 422, 432 (1983). Here the Court of Appeals did not conclude or even attempt to conclude that the state court's finding of no racial motive was not fairly supported by the record. For its whole focus was upon the reasonableness of the asserted nonracial motive (which it thought required by step two) rather than the genuineness of the motive. It gave no proper basis for overturning the state court's finding of no racial motive, a finding which turned primarily on an assessment of credibility, see Batson, 476 U. S., at 98, n. 21. Cf. Marshall, supra, at 434. Accordingly, respondent's motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are *770 granted. 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.

Respondent was convicted of second-degree robbery in a Missouri court. During jury selection, he objected to the prosecutor's use of peremptory challenges to strike two black men from the jury panel, an objection arguably based on The prosecutor explained his strikes: "I struck [juror] number twenty-two because of his long hair. He had long curly hair. He had the longest hair of anybody on the panel by far. He appeared to me to not be a good juror for that fact, the fact that he had long hair hanging down shoulder length, curly, unkempt hair. Also, he had a mustache and a goatee type beard. And juror number twenty-four also has a mustache and goatee type beard. Those are the only two people on the jury with the facial hair And I don't like the way they looked, with the way the hair is cut, both of them. And the mustaches and the beards look suspicious to me." App. to Pet. for Cert. A-41. The prosecutor further explained that he feared that juror number 24, who had had a sawed-off shotgun pointed at him during a supermarket robbery, would believe that "to have a robbery you have to have a gun, and there is no gun in this case." The state trial court, without explanation, overruled respondent's objection and empaneled the jury. On direct appeal, respondent renewed his claim. The Missouri Court of Appeals affirmed, finding that the "state's explanation constituted a legitimate `hunch' " and that "[t]he circumstances fail[ed] to raise the necessary inference of racial discrimination." Respondent then filed a petition for habeas corpus under 28 U.S. C. 2254, asserting this and other claims. Adopting the Magistrate Judge's report and recommendation, the District *767 Court concluded that the Missouri courts' determination that there had been no purposeful discrimination was a factual finding entitled to a presumption of correctness under 2254(d). Since the finding had support in the record, the District Court denied respondent's claim. The Court of Appeals for the Eighth Circuit reversed and remanded with instructions to grant the writ of habeas corpus. It said: "[W]here the prosecution strikes a prospective juror who is a member of the defendant's racial group, solely on the basis of factors which are facially irrelevant to the question of whether that person is qualified to serve as a juror in the particular case, the prosecution must at least articulate some plausible race-neutral reason for believing those factors will somehow affect the person's ability to perform his or her duties as a juror. In the present case, the prosecutor's comments, `I don't like the way [he] look[s], with the way the hair is cut. And the mustach[e] and the bear[d] look suspicious to me,' do not constitute such legitimate race-neutral reasons for striking juror 22." It concluded that the "prosecution's explanation for striking juror 22 was pretextual," and that the state trial court had "clearly erred" in finding that striking juror number 22 had not been intentional discrimination. Under our jurisprudence, once the opponent of a peremptory challenge has made out a prima facie case of racial discrimination (step one), the burden of production shifts to the proponent of the strike to come forward with a raceneutral explanation (step two). If a race-neutral explanation is tendered, the trial court must then decide (step three) whether the opponent of the strike has proved purposeful racial discrimination. ; ; The *768 second step of this process does not demand an explanation that is persuasive, or even plausible. "At this [second] step of the inquiry, the issue is the facial validity of the prosecutor's explanation. Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race neutral." ; The Court of Appeals erred by combining `s second and third steps into one, requiring that the justification tendered at the second step be not just neutral but also at least minimally persuasive, i. e., a "plausible" basis for believing that "the person's ability to perform his or her duties as a juror" will be affected. 25 F.3d, at It is not until the third step that the persuasiveness of the justification becomes relevant—the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination. ; At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination. But to say that a trial judge may choose to disbelieve a silly or superstitious reason at step three is quite different from saying that a trial judge must terminate the inquiry at step two when the race-neutral reason is silly or superstitious. The latter violates the principle that the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike. Cf. St. Mary's Honor The Court of Appeals appears to have seized on our admonition in that to rebut a prima facie case, the proponent of a strike "must give a `clear and reasonably specific' explanation of his `legitimate reasons' for exercising the challenges," n. 20 ), and that the reason must be "related to the particular case *769 to be tried," 476 U.S., See This warning was meant to refute the notion that a prosecutor could satisfy his burden of production by merely denying that he had a discriminatory motive or by merely affirming his good faith. What it means by a "legitimate reason" is not a reason that makes sense, but a reason that does not deny equal protection. See ; cf. The prosecutor's proffered explanation in this case—that he struck juror number 22 because he had long, unkempt hair, a mustache, and a beard—is race neutral and satisfies the prosecution's step two burden of articulating a nondiscriminatory reason for the strike. "The wearing of beards is not a characteristic that is peculiar to any race." And neither is the growing of long, unkempt hair. Thus, the inquiry properly proceeded to step three, where the state court found that the prosecutor was not motivated by discriminatory intent. In habeas proceedings in federal courts, the factual findings of state courts are presumed to be correct, and may be set aside, absent procedural error, only if they are "not fairly supported by the record." 28 U.S. C. 2254(d)(8). See Here the Court of Appeals did not conclude or even attempt to conclude that the state court's finding of no racial motive was not fairly supported by the record. For its whole focus was upon the reasonableness of the asserted nonracial motive (which it thought required by step two) rather than the genuineness of the motive. It gave no proper basis for overturning the state court's finding of no racial motive, a finding which turned primarily on an assessment of credibility, see 476 U. S., n. 21. Cf. Accordingly, respondent's motion for leave to proceed in forma pauperis and the petition for a writ of certiorari are *770 granted. 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

dissenting

Purkett v. Elem

1995-05-15

https://www.courtlistener.com/opinion/117934/purkett-v-elem/

https://www.courtlistener.com/api/rest/v3/clusters/117934/

1994-058

In my opinion it is unwise for the Court to announce a law-changing decision without first ordering full briefing and argument on the merits of the case. The Court does this today when it overrules a portion of our opinion in Batson v. Kentucky, 476 U.S. 79 (1986).[1] In Batson, the Court held that the Equal Protection Clause of the Fourteenth Amendment forbids a prosecutor to use peremptory challenges to exclude African-Americans from jury service because of their race. The Court articulated a three-step process for proving such violations. First, a pattern of peremptory challenges of black jurors may establish a prima facie case of discriminatory purpose. Second, the prosecutor may rebut that prima face case by tendering a race-neutral explanation for the strikes. Third, the court must decide whether that explanation is pretextual. Id. , at 96-98. At the second step of this inquiry, neither a mere denial of improper motive nor an incredible explanation will suffice to rebut the prima facie showing of discriminatory purpose. At a minimum, as the Court held in Batson, the prosecutor "must articulate a neutral explanation related to the particular case to be tried." Id., at 98.[2] *771 Today the Court holds that it did not mean what it said in Batson. Moreover, the Court resolves a novel procedural question without even recognizing its importance to the unusual facts of this case. I In the Missouri trial court, the judge rejected the defendant's Batson objection to the prosecutor's peremptory challenges of two jurors, juror number 22 and juror number 24, on the ground that the defendant had not made out a prima facie case of discrimination. Accordingly, because the defendant had failed at the first step of the Batson inquiry, the judge saw no need even to confirm the defendant's assertion that jurors 22 and 24 were black;[3] nor did the judge require the prosecutor to explain his challenges. The prosecutor nevertheless did volunteer an explanation,[4] but the judge evaluated neither its credibility nor its sufficiency. *772 The Missouri Court of Appeals affirmed, relying partly on the ground that the use of one-third of the prosecutor's peremptories to strike black venire men did not require an explanation, State v. Elem, 747 S.W.2d 772, 774 (1988), and partly on the ground that if any rebuttal was necessary then the volunteered "explanation constituted a legitimate `hunch,' " id., at 775. The court thus relied, alternatively, on steps one and two of the Batson analysis without reaching the question whether the prosecutor's explanation might have been pretextual under step three. The Federal District Court accepted a Magistrate's recommendation to deny petitioner's petition for habeas corpus without conducting a hearing. The Magistrate had reasoned that state-court findings on the issue of purposeful discrimination are entitled to deference. App. to Pet. for Cert. A-27. Even though the trial court had made no such findings, the Magistrate treated the statement by the Missouri Court of Appeals that the prosecutor's reasons "constituted a legitimate `hunch' " as a finding of fact that was supported by the record.[5] When the case reached the United States Court of Appeals for the Eighth Circuit, the parties apparently assumed that petitioner had satisfied the first step of the Batson analysis.[6] The disputed issue in the Court of *773 Appeals was whether the trial judge's contrary finding was academic because the prosecutor's volunteered statement satisfied step two and had not been refuted in step three. The Court of Appeals agreed with the State that excluding juror 24 was not error because the prosecutor's concern about that juror's status as a former victim of a robbery was related to the case at hand. 25 F.3d 679, 681, 682 (1994). The court did, however, find a Batson violation with respect to juror 22. In rejecting the prosecutor's "race-neutral" explanation for the strike, the Court of Appeals faithfully applied the standard that we articulated in Batson: The explanation was not "`related to the particular case to be tried. ` " 25 F.3d, at 683, quoting 476 U.S., at 98 (emphasis in Court of Appeals opinion). Before applying the Batson test, the Court of Appeals noted that its analysis was consistent with both the Missouri Supreme Court's interpretation of Batson inState v. Antwine, 743 S.W.2d 51 (1987) (en banc), and this Court's intervening opinion in Hernandez v. New York, 500 U.S. 352 (1991). 25 F.3d, at 683. Referring to the second stage of the three-step analysis, the Antwine court had observed: "We do not believe, however, that Batson is satisfied by `neutral explanations' which are no more than facially legitimate, reasonably specific and clear. Were facially neutral explanations sufficient without more, Batson would be meaningless. It would take little effort for prosecutors who are of such a mind to adopt rote `neutral explanations' which bear facial legitimacy but conceal a discriminatory motive. We do not believe the Supreme Court intended a charade when it announced Batson. " 743 S.W.2d, at 65. In Hernandez, this Court rejected a Batson claim stemming from a prosecutor's strikes of two Spanish-speaking Latino jurors. The prosecutor explained that he struck the jurors because he feared that they might not accept an interpreter's *774 English translation of trial testimony given in Spanish. Because the prosecutor's explanation was directly related to the particular case to be tried, it satisfied the second prong of the Batson standard. Moreover, as the Court of Appeals noted, 25 F.3d, at 683, the plurality opinion in Hernandez expressly observed that striking all venire persons who speak a given language, "without regard to the particular circumstances of the trial," might constitute a pretext for racial discrimination. 500 U.S., at 371-372 (opinion of Kennedy, J.).[7] Based on our precedent, the Court of Appeals was entirely correct to conclude that the peremptory strike of juror 22 violated Batson because the reason given was unrelated to the circumstances of the trial.[8] *775 Today, without argument, the Court replaces the Batson standard with the surprising announcement that any neutral explanation, no matter how "implausible or fantastic," ante, at 768, even if it is "silly or superstitious," ibid., is sufficient to rebut a prima facie case of discrimination. A trial court must accept that neutral explanation unless a separate "step three" inquiry leads to the conclusion that the peremptory challenge was racially motivated. The Court does not attempt to explain why a statement that "the juror had a beard," or "the juror's last name began with the letter `S' " should satisfy step two, though a statement that "I had a hunch" should not. See ante, at 769; Batson, 476 U. S., at 98. It is not too much to ask that a prosecutor's explanation for his strikes be race neutral, reasonably specific, and trial related. Nothing less will serve to rebut the inference of race-based discrimination that arises when the defendant has made out a prima facie case. Cf. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981). That, in any event, is what we decided in Batson. II The Court's peremptory disposition of this case overlooks a tricky procedural problem. Ordinarily, a federal appeals court reviewing a claim of Batson error in a habeas corpus proceeding must evaluate, with appropriate deference, the factual findings and legal conclusions of the state trial court. But in this case, the only finding the trial judge made was that the defendant had failed to establish a prima facie case. Everyone now agrees that finding was incorrect. The state trial judge, holding that the defendant had failed at step one, *776 made no finding with respect to the sufficiency or credibility of the prosecutor's explanation at step two. The question, then, is whether the reviewing court should (1) go on to decide the second step of the Batson inquiry, (2) reverse and remand to the District Court for further proceedings, or (3) grant the writ conditioned on a proper step-two and (if necessary) step-three hearing in the state trial court. This Court's opinion today implicitly ratifies the Court of Appeals' decision to evaluate on its own whether the prosecutor had satisfied step two. I think that is the correct resolution of this procedural question, but it deserves more consideration than the Court has provided. In many cases, a state trial court or a federal district court will be in a better position to evaluate the facts surrounding peremptory strikes than a federal appeals court. But I would favor a rule giving the appeals court discretion, based on the sufficiency of the record, to evaluate a prosecutor's explanation of his strikes. In this case, I think review is justified because the prosecutor volunteered reasons for the challenges. The Court of Appeals reasonably assumed that these were the same reasons the prosecutor would have given had the trial court required him to respond to the prima facie case. The Court of Appeals, in its discretion, could thus evaluate the explanations for their sufficiency. This presents a pure legal question, and nothing is gained by remand if the appeals court can resolve that question on the facts before it. Assuming the Court of Appeals did not err in reaching step two, a new problem arises when that court (or, as in today's case, this Court) conducts the step-two inquiry and decides that the prosecutor's explanation was sufficient. Who may evaluate whether the prosecutor's explanation was pretextual under step three of Batson? Again, I think the question whether the Court of Appeals decides, or whether it refers the question to a trial court, should depend on the state of the record before the Court of Appeals. Whatever *777 procedure is contemplated, however, I think even this Court would acknowledge that some implausible, fantastic, and silly explanations could be found to be pretextual without any further evidence. Indeed, in Hernandez the Court explained that a trial judge could find pretext based on nothing more than a consistent policy of excluding all Spanishspeaking jurors if that characteristic was entirely unrelated to the case to be tried. 500 U.S., at 371-372 (plurality opinion of Kennedy, J.). Parallel reasoning would justify a finding of pretext based on a policy of excusing jurors with beards if beards have nothing to do with the pending case. In some cases, conceivably the length and unkempt character of a juror's hair and goatee type beard might give rise to a concern that he is a nonconformist who might not be a good juror. In this case, however, the prosecutor did not identify any such concern. He merely said he did not "`like the way [the juror] looked,' " that the facial hair "`look[ed] suspicious.' " Ante, at 766. I think this explanation may well be pretextual as a matter of law; it has nothing to do with the case at hand, and it is just as evasive as "I had a hunch." Unless a reviewing court may evaluate such explanations when a trial judge fails to find that a prima facie case has been established, appellate or collateral review of Batson claims will amount to nothing more than the meaningless charade that the Missouri Supreme Court correctly understood Batson to disfavor. Antwine, 743 S. W. 2d, at 65. In my opinion, preoccupation with the niceties of a threestep analysis should not foreclose meaningful judicial review of prosecutorial explanations that are entirely unrelated to the case to be tried. I would adhere to the Batson rule that such an explanation does not satisfy step two. Alternatively, I would hold that, in the absence of an explicit trial court finding on the issue, a reviewing court may hold that such an explanation is pretextual as a matter of law. The Court's unnecessary tolerance of silly, fantastic, and implausible explanations, together with its assumption that there is *778 a difference of constitutional magnitude between a statement that "I had a hunch about this juror based on his appearance," and "I challenged this juror because he had a mustache," demeans the importance of the values vindicated by our decision in Batson. I respectfully dissent.

In my opinion it is unwise for the Court to announce a law-changing decision without first ordering full briefing and argument on the merits of the case The Court does this today when it overrules a portion of our opinion in [1] In the Court held that the Equal Protection Clause of the Fourteenth Amendment forbids a prosecutor to use peremptory challenges to exclude African-Americans from jury service because of their race The Court articulated a three-step process for proving such violations First, a pattern of peremptory challenges of black jurors may establish a prima facie case of discriminatory purpose Second, the prosecutor may rebut that prima face case by tendering a race-neutral explanation for the strikes Third, the court must decide whether that explanation is pretextual at 96-98 At the second step of this inquiry, neither a mere denial of improper motive nor an incredible explanation will suffice to rebut the prima facie showing of discriminatory purpose At a minimum, as the Court held in the prosecutor "must articulate a neutral explanation related to the particular case to be tried" [2] *771 Today the Court holds that it did not mean what it said in Moreover, the Court resolves a novel procedural question without even recognizing its importance to the unusual facts of this case I In the Missouri trial court, the judge rejected the defendant's objection to the prosecutor's peremptory challenges of two jurors, juror number 22 and juror number 24, on the ground that the defendant had not made out a prima facie case of discrimination Accordingly, because the defendant had failed at the first step of the inquiry, the judge saw no need even to confirm the defendant's assertion that jurors 22 and 24 were black;[3] nor did the judge require the prosecutor to explain his challenges The prosecutor nevertheless did volunteer an explanation,[4] but the judge evaluated neither its credibility nor its sufficiency *772 The Missouri Court of Appeals affirmed, relying partly on the ground that the use of one-third of the prosecutor's peremptories to strike black venire men did not require an explanation, and partly on the ground that if any rebuttal was necessary then the volunteered "explanation constituted a legitimate `hunch,' " The court thus relied, alternatively, on steps one and two of the analysis without reaching the question whether the prosecutor's explanation might have been pretextual under step three The Federal District Court accepted a Magistrate's recommendation to deny petitioner's petition for habeas corpus without conducting a hearing The Magistrate had reasoned that state-court findings on the issue of purposeful discrimination are entitled to deference App to Pet for Cert A-27 Even though the trial court had made no such findings, the Magistrate treated the statement by the Missouri Court of Appeals that the prosecutor's reasons "constituted a legitimate `hunch' " as a finding of fact that was supported by the record[5] When the case reached the United States Court of Appeals for the Eighth Circuit, the parties apparently assumed that petitioner had satisfied the first step of the analysis[6] The disputed issue in the Court of *773 Appeals was whether the trial judge's contrary finding was academic because the prosecutor's volunteered statement satisfied step two and had not been refuted in step three The Court of Appeals agreed with the State that excluding juror 24 was not error because the prosecutor's concern about that juror's status as a former victim of a robbery was related to the case at hand The court did, however, find a violation with respect to juror 22 In rejecting the prosecutor's "race-neutral" explanation for the strike, the Court of Appeals faithfully applied the standard that we articulated in : The explanation was not "`related to the particular case to be tried ` " 476 US, Before applying the test, the Court of Appeals noted that its analysis was consistent with both the Missouri Supreme Court's interpretation of and this Court's intervening opinion in Referring to the second stage of the three-step analysis, the Antwine court had observed: "We do not believe, however, that is satisfied by `neutral explanations' which are no more than facially legitimate, reasonably specific and clear Were facially neutral explanations sufficient without more, would be meaningless It would take little effort for prosecutors who are of such a mind to adopt rote `neutral explanations' which bear facial legitimacy but conceal a discriminatory motive We do not believe the Supreme Court intended a charade when it announced " 743 SW2d, at 65 In Hernandez, this Court rejected a claim stemming from a prosecutor's strikes of two Spanish-speaking Latino jurors The prosecutor explained that he struck the jurors because he feared that they might not accept an interpreter's * English translation of trial testimony given in Spanish Because the prosecutor's explanation was directly related to the particular case to be tried, it satisfied the second prong of the standard Moreover, as the Court of Appeals noted, the plurality opinion in Hernandez expressly observed that striking all venire persons who speak a given language, "without regard to the particular circumstances of the trial," might constitute a pretext for racial discrimination 500 US, at 371-372 (opinion of Kennedy, J)[7] Based on our precedent, the Court of Appeals was entirely correct to conclude that the peremptory strike of juror 22 violated because the reason given was unrelated to the circumstances of the trial[8] *775 Today, without argument, the Court replaces the standard with the surprising announcement that any neutral explanation, no matter how "implausible or fantastic," ante, at 768, even if it is "silly or superstitious," ib is sufficient to rebut a prima facie case of discrimination A trial court must accept that neutral explanation unless a separate "step three" inquiry leads to the conclusion that the peremptory challenge was racially motivated The Court does not attempt to explain why a statement that "the juror had a beard," or "the juror's last name began with the letter `S' " should satisfy step two, though a statement that "I had a hunch" should not See ante, at 769; 476 U S, It is not too much to ask that a prosecutor's explanation for his strikes be race neutral, reasonably specific, and trial related Nothing less will serve to rebut the inference of race-based discrimination that arises when the defendant has made out a prima facie case Cf Texas Dept of Community Affairs v Burdine, 450 US 248, That, in any event, is what we decided in II The Court's peremptory disposition of this case overlooks a tricky procedural problem Ordinarily, a federal appeals court reviewing a claim of error in a habeas corpus proceeding must evaluate, with appropriate deference, the factual findings and legal conclusions of the state trial court But in this case, the only finding the trial judge made was that the defendant had failed to establish a prima facie case Everyone now agrees that finding was incorrect The state trial judge, holding that the defendant had failed at step one, *776 made no finding with respect to the sufficiency or credibility of the prosecutor's explanation at step two The question, then, is whether the reviewing court should (1) go on to decide the second step of the inquiry, (2) reverse and remand to the District Court for further proceedings, or (3) grant the writ conditioned on a proper step-two and (if necessary) step-three hearing in the state trial court This Court's opinion today implicitly ratifies the Court of Appeals' decision to evaluate on its own whether the prosecutor had satisfied step two I think that is the correct resolution of this procedural question, but it deserves more consideration than the Court has provided In many cases, a state trial court or a federal district court will be in a better position to evaluate the facts surrounding peremptory strikes than a federal appeals court But I would favor a rule giving the appeals court discretion, based on the sufficiency of the record, to evaluate a prosecutor's explanation of his strikes In this case, I think review is justified because the prosecutor volunteered reasons for the challenges The Court of Appeals reasonably assumed that these were the same reasons the prosecutor would have given had the trial court required him to respond to the prima facie case The Court of Appeals, in its discretion, could thus evaluate the explanations for their sufficiency This presents a pure legal question, and nothing is gained by remand if the appeals court can resolve that question on the facts before it Assuming the Court of Appeals did not err in reaching step two, a new problem arises when that court (or, as in today's case, this Court) conducts the step-two inquiry and decides that the prosecutor's explanation was sufficient Who may evaluate whether the prosecutor's explanation was pretextual under step three of ? Again, I think the question whether the Court of Appeals decides, or whether it refers the question to a trial court, should depend on the state of the record before the Court of Appeals Whatever *777 procedure is contemplated, however, I think even this Court would acknowledge that some implausible, fantastic, and silly explanations could be found to be pretextual without any further evidence Indeed, in Hernandez the Court explained that a trial judge could find pretext based on nothing more than a consistent policy of excluding all Spanishspeaking jurors if that characteristic was entirely unrelated to the case to be tried 500 US, at 371-372 (plurality opinion of Kennedy, J) Parallel reasoning would justify a finding of pretext based on a policy of excusing jurors with beards if beards have nothing to do with the pending case In some cases, conceivably the length and unkempt character of a juror's hair and goatee type beard might give rise to a concern that he is a nonconformist who might not be a good juror In this case, however, the prosecutor did not identify any such concern He merely said he did not "`like the way [the juror] looked,' " that the facial hair "`look[ed] suspicious' " Ante, at 766 I think this explanation may well be pretextual as a matter of law; it has nothing to do with the case at hand, and it is just as evasive as "I had a hunch" Unless a reviewing court may evaluate such explanations when a trial judge fails to find that a prima facie case has been established, appellate or collateral review of claims will amount to nothing more than the meaningless charade that the Missouri Supreme Court correctly understood to disfavor Antwine, 743 S W 2d, at 65 In my opinion, preoccupation with the niceties of a threestep analysis should not foreclose meaningful judicial review of prosecutorial explanations that are entirely unrelated to the case to be tried I would adhere to the rule that such an explanation does not satisfy step two Alternatively, I would hold that, in the absence of an explicit trial court finding on the issue, a reviewing court may hold that such an explanation is pretextual as a matter of law The Court's unnecessary tolerance of silly, fantastic, and implausible explanations, together with its assumption that there is *778 a difference of constitutional magnitude between a statement that "I had a hunch about this juror based on his appearance," and "I challenged this juror because he had a mustache," demeans the importance of the values vindicated by our decision in I respectfully dissent

Justice Rehnquist

majority

American Mfrs. Mut. Ins. Co. v. Sullivan

1999-05-24

https://www.courtlistener.com/opinion/118268/american-mfrs-mut-ins-co-v-sullivan/

https://www.courtlistener.com/api/rest/v3/clusters/118268/

1998-028

[†] Pennsylvania provides in its workers' compensation regime that an employer or insurer may withhold payment for disputed medical treatment pending an independent review to determine whether the treatment is reasonable and necessary. We hold that the insurers are not "state actors" under the Fourteenth Amendment, and that the Pennsylvania regime *44 does not deprive disabled employees of property within the meaning of that Amendment. I Before the enactment of workers' compensation laws, employees who suffered a work-related injury or occupational disease could recover compensation from their employers only by resort to traditional tort remedies available at common law. In the early 20th century, States began to replace the common-law system, which often saddled employees with the difficulty and expense of establishing negligence or proving damages, with a compulsory insurance system requiring employers to compensate employees for work-related injuries without regard to fault. See generally 1 A. Larson & L. Larson, Larson's Workers' Compensation Law §§ 5.20-5.30, pp. 2-15 to 2-25 (1996). Following this model, Pennsylvania's Workers' Compensation Act, Pa. Stat. Ann., Tit. 77, § 1 et seq. (Purdon 1992 and Supp. 1998) (Act or 77 Pa. Stat. Ann.), first enacted in 1915, creates a system of no-fault liability for work-related injuries and makes employers' liability under this system "exclusive . . . of any and all other liability." § 481(a). All employers subject to the Act must (1) obtain workers' compensation insurance from a private insurer, (2) obtain such insurance through the State Workmen's Insurance Fund (SWIF), or (3) seek permission from the State to self-insure. § 501(a). Once an employer becomes liable for an employee's work-related injury—because liability either is not contested or is no longer at issue—the employer or its insurer[1] must pay for all "reasonable" and "necessary" medical treatment, and must do so within 30 days of receiving a bill. §§ 531(1)(i), (5). *45 To assure that insurers pay only for medical care that meets these criteria, and in an attempt to control costs, Pennsylvania amended its workers' compensation system in 1993. 1993 Pa. Laws, No. 44, p. 190. Most important for our purposes, the 1993 amendments created a "utilization review" procedure under which the reasonableness and necessity of an employee's past, ongoing, or prospective medical treatment could be reviewed before a medical bill must be paid. 77 Pa. Stat. Ann. § 531(6) (Purdon Supp. 1998).[2] Under this system, if an insurer "disputes the reasonableness or necessity of the treatment provided," § 531(5), it may request utilization review (within the same 30-day period) by filing a one-page form with the Workers' Compensation Bureau of the Pennsylvania Department of Labor and Industry (Bureau). § 531(6)(i); 34 Pa. Code §§ 127.404(b), 127.452(a) (1998). The form identifies (among other things) the employee, the medical provider, the date of the employee's injury, and the medical treatment to be reviewed. Ibid.; App. 5. The Bureau makes no attempt, as the Court of Appeals stated, to "address the legitimacy or lack thereof of the request," but merely determines whether the form is "properly completed—i.e., that all information required by the form is provided." Sullivan v. Barnett, 139 F.3d 158, 163 (CA3 1998); see 34 Pa. Code § 127.452(a). Upon the proper filing *46 of a request, an insurer may withhold payment to health care providers for the particular services being challenged. 77 Pa. Stat. Ann. § 531(5) (Purdon Supp. 1998); 34 Pa. Code § 208(f). The Bureau then notifies the parties that utilization review has been requested and forwards the request to a randomly selected "utilization review organization" (URO). § 127.453. URO's are private organizations consisting of health care providers who are "licensed in the same profession and hav[e] the same or similar specialty as that of the provider of the treatment under review," 77 Pa. Stat. Ann. § 531(6)(i) (Purdon Supp. 1998); 34 Pa. Code § 127.466. The purpose of utilization review, and the sole authority conferred upon a URO, is to determine "whether the treatment under review is reasonable or necessary for the medical condition of the employee" in light of "generally accepted treatment protocols." §§ 127.470(a), 127.467. Reviewers must examine the treating provider's medical records, §§ 127.459, 127.460, and must give the provider an opportunity to discuss the treatment under review, § 127.469.[3] Any doubt as to the reasonableness and necessity of a given procedure must be resolved in favor of the employee. § 127.471(b). *47 URO's are instructed to complete their review and render a determination within 30 days of a completed request. 77 Pa. Stat. Ann. § 531(6)(ii) (Purdon Supp. 1998); 34 Pa. Code § 127.465. If the URO finds in favor of the insurer, the employee may appeal the determination to a workers' compensation judge for a de novo review, but the insurer need not pay for the disputed services unless the URO's determination is overturned by the judge, or later by the courts. 77 Pa. Stat. Ann. § 531(6)(iv) (Purdon Supp. 1998); 34 Pa. Code § 127.556. If the URO finds in favor of the employee, the insurer must pay the disputed bill immediately, with 10 percent annual interest, as well as the cost of the utilization review.[4] 34 Pa. Code § 127.208(e); 77 Pa. Stat. Ann. § 531(6)(iii) (Purdon Supp. 1998). Respondents are 10 individual employees and 2 organizations representing employees who received medical benefits under the Act.[5] They claimed to have had payment of particular benefits withheld pursuant to the utilization review procedure set forth in the Act. They sued under Rev. Stat. § 1979, 42 U.S. C. § 1983, acting individually and on behalf of a class of similarly situated employees.[6] Named as defendants were various Pennsylvania officials who administer the Act, the director of the SWIF, the School District of Philadelphia *48 (which self-insures), and a number of private insurance companies who provide workers' compensation coverage in Pennsylvania. Respondents alleged that in withholding workers' compensation benefits without predeprivation notice and an opportunity to be heard, the state and private defendants, acting "under color of state law," deprived them of property in violation of due process. Amended Complaint ¶¶ 265-271, App. 43-44. They sought declaratory and injunctive relief, as well as damages. The District Court dismissed the private insurers from the lawsuit on the ground that they are not "state actors," Sullivan v. Barnett, 913 F. Supp. 895, 905 (ED Pa. 1996), and later dismissed the state officials who remained as defendants, as well as the school district, on the ground that the Act does not violate due process, App. to Pet. for Cert. 71a. The Court of Appeals for the Third Circuit disagreed on both issues. 139 F.3d 158 (1998). It held that a private insurer's decision to suspend payment under the Act—what the court called a "supersedeas"—constitutes state action. The court reasoned: "In creating and executing this system of entitlements, the [State] has enacted a complex and interwoven regulatory web enlisting the Bureau, the employers, and the insurance companies. The [State] extensively regulates and controls the Workers' Compensation system. Although the insurance companies are private entities, when they act under the construct of the Workers' Compensation system, they are providing public benefits which honor [s]tate entitlements. In effect, they become an arm of the State, fulfilling a uniquely governmental obligation under an entirely state-created, self-contained public benefit system. . . . "The right to invoke the supersedeas, or to stop payments, is a power that traditionally was held in the hands of the State. When insurance companies invoke the supersedeas (i. e., suspension) of an employee's medical *49 benefits, they compromise an employee's [s]tatecreated entitlements. The insurers have no power to deprive or terminate such benefits without the permission and participation of the [State]. More importantly, however, the [State] is intimately involved in any decision by an insurer to terminate an employee's constitutionally protected benefits because an insurer cannot suspend medical payments without first obtaining authorization from the Bureau. However this authorization may be characterized, any deprivation that occurs is predicated upon the State's involvement." Id., at 168. On the due process issue, the Court of Appeals did not address whether respondents have a protected property interest in workers' compensation medical benefits, stating that "[n]either party disputes" this point. Id., at 171, n. 23. Thus focusing on what process is "due," the court held that payment of bills may not be withheld until employees have had an opportunity to submit their view in writing as to the reasonableness and necessity of the disputed treatment to the URO. The court then determined that the relevant statutory language permitting the suspension of payment during utilization review was severable and struck it from the statute. Id., at 173-174. We granted certiorari, 524 U.S. 981 (1998), to resolve a conflict on the status of private insurers providing workers' compensation coverage under state laws,[7] and to review the Court of Appeals' holding that due process prohibits insurers from withholding payment for disputed medical treatment pending review. II To state a claim for relief in an action brought under § 1983, respondents must establish that they were deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed *50 under color of state law. Like the state-action requirement of the Fourteenth Amendment, the under-color-of-state-law element of § 1983 excludes from its reach "`merely private conduct, no matter how discriminatory or wrongful,' " Blum v. Yaretsky, 457 U.S. 991, 1002 (1982) (quoting Shelley v. Kraemer, 334 U.S. 1, 13 (1948)).[8] Perhaps hoping to avoid the traditional application of our state-action cases, respondents attempt to characterize their claim as a "facial" or "direct" challenge to the utilization review procedures contained in the Act, in which case, the argument goes, we need not concern ourselves with the "identity of the defendant" or the "act or decision by a private actor or entity who is relying on the challenged law." Brief for Respondents 16. This argument, however, ignores our repeated insistence that state action requires both an alleged constitutional deprivation "caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible," and that "the party charged with the deprivation must be a person who may fairly be said to be a state actor." Lugar v. Edmondson Oil Co., 457 U.S. 922, 937 (1982); see Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 156 (1978). In this case, while it may fairly be said that private insurers act "`with the knowledge of and pursuant to' " the state statute, ibid. (quoting Adickes v. S. H. Kress & Co., 398 U.S. 144, 162, n. 23 (1970)), thus satisfying the first requirement, respondents still must satisfy the second, whether the allegedly unconstitutional conduct is fairly attributable to the State.[9] *51 Our approach to this latter question begins by identifying "the specific conduct of which the plaintiff complains." Blum v. Yaretsky, 457 U. S., at 1004; see id., at 1003 ("Faithful adherence to the `state action' requirement . . . requires careful attention to the gravamen of the plaintiff's complaint"). Here, respondents named as defendants both public officials and a class of private insurers and self-insured employers. Also named is the director of the SWIF and the School District of Philadelphia, a municipal corporation. The complaint alleged that the state and private defendants, acting under color of state law and pursuant to the Act, deprived them of property in violation of due process by withholding payment for medical treatment without prior notice and an opportunity to be heard. All agree that the public officials responsible for administering the workers' compensation system and the director of SWIF are state actors. See 139 F.3d, at 167.[10] Thus, the issue we address, in accordance with our cases, is whether a private insurer's decision to withhold payment for disputed medical treatment may be fairly attributable to the State so as to subject insurers to the constraints of the Fourteenth Amendment. Our answer to that question is "no." *52 In cases involving extensive state regulation of private activity, we have consistently held that "[t]he mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth Amendment." Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350 (1974); see Blum, 457 U. S., at 1004. Faithful application of the state-action requirement in these cases ensures that the prerogative of regulating private business remains with the States and the representative branches, not the courts. Thus, the private insurers in this case will not be held to constitutional standards unless "there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself." Ibid. (internal quotation marks omitted). Whether such a "close nexus" exists, our cases state, depends on whether the State "has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." Ibid.; see Flagg Bros., supra, at 166; Jackson, supra, at 357; Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173 (1972); Adickes v. S. H. Kress & Co., supra, at 170. Action taken by private entities with the mere approval or acquiescence of the State is not state action. Blum, supra, at 1004-1005; Flagg Bros., supra, at 154-165; Jackson, supra, at 357. Here, respondents do not assert that the decision to invoke utilization review should be attributed to the State because the State compels or is directly involved in that decision. Obviously the State is not so involved. It authorizes, but does not require, insurers to withhold payments for disputed medical treatment. The decision to withhold payment, like the decision to transfer Medicaid patients to a lower level of care in Blum, is made by concededly private parties, and "turns on . . . judgments made by private parties" without "standards . . . established by the State." Blum, supra, at 1008. *53 Respondents do assert, however, that the decision to withhold payment to providers may be fairly attributable to the State because the State has "authorized" and "encouraged" it. Respondents' primary argument in this regard is that, in amending the Act to provide for utilization review and to grant insurers an option they previously did not have, the State purposely "encouraged" insurers to withhold payments for disputed medical treatment. This argument reads too much into the State's reform, and in any event cannot be squared with our cases. We do not doubt that the State's decision to provide insurers the option of deferring payment for unnecessary and unreasonable treatment pending review can in some sense be seen as encouraging them to do just that. But, as petitioners note, this kind of subtle encouragement is no more significant than that which inheres in the State's creation or modification of any legal remedy. We have never held that the mere availability of a remedy for wrongful conduct, even when the private use of that remedy serves important public interests, so significantly encourages the private activity as to make the State responsible for it. See Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 485 (1988) ("Private use of state-sanctioned private remedies or procedures does not rise to the level of state action"); see also Lugar, 457 U. S., at 937; Flagg Bros. , 436 U. S., at 165— 166. It bears repeating that a finding of state action on this basis would be contrary to the "essential dichotomy," Jackson, supra, at 349, between public and private acts that our cases have consistently recognized. The State's decision to allow insurers to withhold payments pending review can just as easily be seen as state inaction, or more accurately, a legislative decision not to intervene in a dispute between an insurer and an employee over whether a particular treatment is reasonable and necessary. See Flagg Bros., 436 U. S., at 164-165. Before the 1993 amendments, Pennsylvania restricted the ability of an *54 insurer (after liability had been established, of course) to defer workers' compensation medical benefits, including payment for unreasonable and unnecessary treatment, beyond 30 days of receipt of the bill. The 1993 amendments, in effect, restored to insurers the narrow option, historically exercised by employers and insurers before the adoption of Pennsylvania's workers' compensation law, to defer payment of a bill until it is substantiated. The most that can be said of the statutory scheme, therefore, is that whereas it previously prohibited insurers from withholding payment for disputed medical services, it no longer does so. Such permission of a private choice cannot support a finding of state action. As we have said before, our cases will not tolerate "the imposition of Fourteenth Amendment restraints on private action by the simple device of characterizing the State's inaction as `authorization' or `encouragement.' " Ibid. Nor does the State's role in creating, supervising, and setting standards for the URO process differ in any meaningful sense from the creation and administration of any forum for resolving disputes. While the decision of a URO, like that of any judicial official, may properly be considered state action, a private party's mere use of the State's dispute resolution machinery, without the "overt, significant assistance of state officials," Tulsa, supra, at 486, cannot. The State, in the course of administering a many-faceted remedial system, has shifted one facet from favoring the employees to favoring the employer. This sort of decision occurs regularly in legislative review of such systems. But it cannot be said that such a change "encourages" or "authorizes" the insurer's actions as those terms are used in our state-action jurisprudence. We also reject the notion, relied upon by the Court of Appeals, that the challenged decisions are state action because insurers must first obtain "authorization" or "permission" from the Bureau before withholding payment. See 139 F.3d, at 168. As described in our earlier summary of the *55 statute and regulations, the Bureau's participation is limited to requiring insurers to file "a form prescribed by the Bureau," 34 Pa. Code § 127.452, processing the request for technical compliance, and then forwarding the matter to a URO and informing the parties that utilization review has been requested. In Blum, we rejected the notion that the State, "by requiring completion of a form," 457 U.S., at 1007, is responsible for the private party's decision. The additional "paper shuffling" performed by the Bureau here in response to an insurers' request does not alter that conclusion. Respondents next contend that state action is present because the State has delegated to insurers "powers traditionally exclusively reserved to the State." Jackson, 419 U. S., at 352. Their argument here is twofold. Relying on West v. Atkins, 487 U.S. 42 (1988), respondents first argue that workers' compensation benefits are state-mandated "public benefits," and that the State has delegated the provision of these "public benefits" to private insurers. They also contend that the State has delegated to insurers the traditionally exclusive government function of determining whether and under what circumstances an injured worker's medical benefits may be suspended. The Court of Appeals apparently agreed on both points, stating that insurers "providing public benefits which honor State entitlements .. . become an arm of the State, fulfilling a uniquely governmental obligation," 139 F.3d, at 168, and that "[t]he right to invoke the supersedeas, or to stop payments, is a power that traditionally was held in the hands of the State," ibid. We think neither argument has merit. West is readily distinguishable: There the State was constitutionally obligated to provide medical treatment to injured inmates, and the delegation of that traditionally exclusive public function to a private physician gave rise to a finding of state action. See 487 U.S., at 54-56. Here, on the other hand, nothing in Pennsylvania's Constitution or statutory scheme obligates the State to provide either medical treatment or workers' *56 compensation benefits to injured workers. See Blum, supra, at 1011. Instead, the State's workers' compensation law imposes that obligation on employers. This case is therefore not unlike Jackson, supra, where we noted that "while the Pennsylvania statute imposes an obligation to furnish service on regulated utilities, it imposes no such obligation on the State." Id., at 353; see also San Francisco Arts & Athletics, Inc. v. United States Olympic Comm., 483 U.S. 522, 544 (1987) ("The fact `[t]hat a private entity performs a function which serves the public does not make its acts [governmental] action' ") (quoting Rendell-Baker v. Kohn, 457 U.S. 830, 842 (1982)).[11] Nor is there any merit in respondents' argument that the State has delegated to insurers the traditionally exclusive governmental function of deciding whether to suspend payment for disputed medical treatment. Historical practice, as well as the state statutory scheme, does not support respondents' characterization. It is no doubt true that before the 1993 amendments an insurer who sought to withhold payment for disputed medical treatment was required to petition the Bureau, and could withhold payment only upon a favorable ruling by a workers' compensation judge, and then only for prospective treatment. But before Pennsylvania ever adopted its workers' compensation law, an insurer under contract with an employer to pay for its workers' reasonable and necessary medical expenses could withhold payment, for any reason or no reason, without any authorization or involvement of the State. The *57 insurer, of course, might become liable to the employer (or its workers) if the refusal to pay breached the contract or constituted "bad faith," but the obligation to pay would only arise after the employer had initiated a claim and reduced it to a judgment. That Pennsylvania first recognized an insurer's traditionally private prerogative to withhold payment, then restricted it, and now (in one limited respect) has restored it, cannot constitute the delegation of a traditionally exclusive public function. Like New York in Flagg Bros., Pennsylvania "has done nothing more than authorize (and indeed limit)—without participation by any public official— what [private insurers] would tend to do, even in the absence of such authorization," i. e., withhold payment for disputed medical treatment pending a determination that the treatment is, in fact, reasonable and necessary. 436 U.S., at 162, n. 12. The Court of Appeals, in response to the various arguments advanced by respondents, seems to have figuratively thrown up its hands and fallen back on language in our decision in Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961). The Pennsylvania system, that court said, "inextricably entangles the insurance companies in a partnership with the Commonwealth such that they become an integral part of the state in administering the statutory scheme." 139 F.3d, at 170. Relying on Burton, respondents urge us to affirm the Court of Appeals' holding under a "joint participation" theory of state action. Burton was one of our early cases dealing with "state action" under the Fourteenth Amendment, and later cases have refined the vague "joint participation" test embodied in that case. Blum and Jackson, in particular, have established that "privately owned enterprises providing services that the State would not necessarily provide, even though they are extensively regulated, do not fall within the ambit of Burton. " Blum, 457 U. S., at 1011; see Jackson, supra, at 357-358. Here, workers' compensation insurers are at least *58 as extensively regulated as the private nursing facilities in Blum and the private utility in Jackson. Like those cases, though, the state statutory and regulatory scheme leaves the challenged decisions to the judgment of insurers. Respondents also rely on Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982), which contains general language about "joint participation" as a test for state action. But, as the Lugar opinion itself makes clear, its language must not be torn from the context out of which it arose: "The Court of Appeals erred in holding that in this context `joint participation' required something more than invoking the aid of state officials to take advantage of state-created attachment procedures. . . . Whatever may be true in other contexts, this is sufficient when the State has created a system whereby state officials will attach property on the ex parte application of one party to a private dispute." Id., at 942. In the present case, of course, there is no effort by petitioners to seize the property of respondents by an ex parte application to a state official. We conclude that an insurer's decision to withhold payment and seek utilization review of the reasonableness and necessity of particular medical treatment is not fairly attributable to the State. Respondents have therefore failed to satisfy an essential element of their § 1983 claim. III Though our resolution of the state-action issue would be sufficient by itself to reverse the judgment of the Court of Appeals, we believe the court fundamentally misapprehended the nature of respondents' property interest at stake in this case, with ramifications not only for the state officials who are concededly state actors, but also for the private insurers who (under our holding in Part II) are not. If the Court of Appeals' ruling is left undisturbed, SWIF, which *59 insures both public and private employers, will be required to pay for all medical treatment (reasonable and necessary or not) within 30 days, while private insurers will be able to defer payment for disputed treatment pending utilization review.[12] Although we denied the petitions for certiorari filed by the school district, 525 U.S. 824 (1998), and the various state officials, 525 U.S. 824 (1998), we granted both questions presented in the petition filed by the private insurance companies. The second question therein states: "Whether the Due Process Clause requires workers' compensation insurers to pay disputed medical bills prior to a determination that the medical treatment was reasonable and necessary." Pet. for Cert. (i). This question has been briefed and argued, it is an important one, and it is squarely presented for review. We thus proceed to address it. The first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in "property" or "liberty." See U. S. Const., Amdt. 14 ("nor shall any State deprive any person of life, liberty, or property, without due process of law"); Mathews v. Eldridge, 424 U.S. 319, 332 (1976). Only after finding the deprivation of a protected interest do we look to see if the State's procedures comport with due process. Ibid. Here, respondents contend that Pennsylvania's workers' compensation law confers upon them a protected property interest in workers' compensation medical benefits. Under state law, respondents assert, once an employer's liability is established for a particular work-related injury, the employer *60 is obligated to pay for certain benefits, including partial wage replacement, compensation for permanent injury or disability, and medical care. See 77 Pa. Stat. Ann. §§ 431, 531 (Purdon Supp. 1998). It follows from this, the argument goes, that medical benefits are a state-created entitlement, and thus an insurer cannot withhold payment of medical benefits without affording an injured worker due process. In Goldberg v. Kelly, 397 U.S. 254 (1970), we held that an individual receiving federal welfare assistance has a statutorily created property interest in the continued receipt of those benefits. Likewise, in Mathews, supra, we recognized that the same was true for an individual receiving Social Security disability benefits. In both cases, an individual's entitlement to benefits had been established, and the question presented was whether predeprivation notice and a hearing were required before the individual's interest in continued payment of benefits could be terminated. See Goldberg, supra, at 261-263; Mathews, supra, at 332. Respondents' property interest in this case, however, is fundamentally different. Under Pennsylvania law, an employee is not entitled to payment for all medical treatment once the employer's initial liability is established, as respondents' argument assumes. Instead, the law expressly limits an employee's entitlement to "reasonable" and "necessary" medical treatment, and requires that disputes over the reasonableness and necessity of particular treatment must be resolved before an employer's obligation to pay— and an employee's entitlement to benefits—arise. See 77 Pa. Stat. Ann. § 531(1)(i) (Purdon Supp. 1998) ("The employer shall provide payment . . . for reasonable surgical and medical services" (emphasis added)); § 531(5) ("All payments to providers for treatment . . . shall be made within thirty (30) days of receipt of such bills and records unless the employer or insurer disputes the reasonableness or necessity of the treatment " (emphasis added)). Thus, for an employee's property interest in the payment of medical benefits to attach under state law, the employee must clear two *61 hurdles: First, he must prove that an employer is liable for a work-related injury, and second, he must establish that the particular medical treatment at issue is reasonable and necessary. Only then does the employee's interest parallel that of the beneficiary of welfare assistance in Goldberg and the recipient of disability benefits in Mathews. Respondents obviously have not cleared both of these hurdles. While they indeed have established their initial eligibility for medical treatment, they have yet to make good on their claim that the particular medical treatment they received was reasonable and necessary. Consequently, they do not have a property interest—under the logic of their own argument—in having their providers paid for treatment that has yet to be found reasonable and necessary. To state the argument is to refute it, for what respondents ask in this case is that insurers be required to pay for patently unreasonable, unnecessary, and even fraudulent medical care without any right, under state law, to seek reimbursement from providers. Unsurprisingly, the Due Process Clause does not require such a result. Having concluded that respondents' due process claim falters for lack of a property interest in the payment of benefits, we need go no further.[13] The judgment of the Court of Appeals is Reversed. Justice Ginsburg, concurring in part and concurring in the judgment.

[†] Pennsylvania provides in its workers' compensation regime that an employer or insurer may withhold payment for disputed medical treatment pending an independent review to determine whether the treatment is reasonable and necessary. We hold that the insurers are not "state actors" under the Fourteenth Amendment, and that the Pennsylvania regime *44 does not deprive disabled employees of property within the meaning of that Amendment. I Before the enactment of workers' compensation laws, employees who suffered a work-related injury or occupational disease could recover compensation from their employers only by resort to traditional tort remedies available at common law. In the early 20th century, States began to replace the common-law system, which often saddled employees with the difficulty and expense of establishing negligence or proving damages, with a compulsory insurance system requiring employers to compensate employees for work-related injuries without regard to fault. See generally 1 A. Larson & L. Larson, Larson's Workers' Compensation Law 5.20-5.30, pp. 2-15 to 2-25 Following this model, Pennsylvania's Workers' Compensation Act, Pa. Stat. Ann., Tit. 77, 1 et seq. (Act or 77 Pa. Stat. Ann.), first enacted in 1915, creates a system of no-fault liability for work-related injuries and makes employers' liability under this system "exclusive of any and all other liability." 481(a). All employers subject to the Act must (1) obtain workers' compensation insurance from a private insurer, (2) obtain such insurance through the State Workmen's Insurance Fund (SWIF), or (3) seek permission from the State to self-insure. 501(a). Once an employer becomes liable for an employee's work-related injury—because liability either is not contested or is no longer at issue—the employer or its insurer[1] must pay for all "reasonable" and "necessary" medical treatment, and must do so within 30 days of receiving a bill. 531(1)(i), (5). *45 To assure that insurers pay only for medical care that meets these criteria, and in an attempt to control costs, Pennsylvania amended its workers' compensation system in 1993. 1993 Pa. Laws, No. 44, p. 190. Most important for our purposes, the 1993 amendments created a "utilization review" procedure under which the reasonableness and necessity of an employee's past, ongoing, or prospective medical treatment could be reviewed before a medical bill must be paid. 77 Pa. Stat. Ann. 531(6)[2] Under this system, if an insurer "disputes the reasonableness or necessity of the treatment provided," 531(5), it may request utilization review (within the same 30-day period) by filing a one-page form with the Workers' Compensation Bureau of the Pennsylvania Department of Labor and Industry (Bureau). 531(6)(i); 34 Pa. Code 127.404(b), 127.452(a) The form identifies (among other things) the employee, the medical provider, the date of the employee's injury, and the medical treatment to be reviewed. ; App. 5. The Bureau makes no attempt, as the Court of Appeals stated, to "address the legitimacy or lack thereof of the request," but merely determines whether the form is "properly completed—i.e., that all information required by the form is provided." ; see 34 Pa. Code 127.452(a). Upon the proper filing *46 of a request, an insurer may withhold payment to health care providers for the particular services being challenged. 77 Pa. Stat. Ann. 531(5) ; 34 Pa. Code 208(f). The Bureau then notifies the parties that utilization review has been requested and forwards the request to a randomly selected "utilization review organization" (URO). 127.453. URO's are private organizations consisting of health care providers who are "licensed in the same profession and hav[e] the same or similar specialty as that of the provider of the treatment under review," 77 Pa. Stat. Ann. 531(6)(i) ; 34 Pa. Code 127.466. The purpose of utilization review, and the sole authority conferred upon a URO, is to determine "whether the treatment under review is reasonable or necessary for the medical condition of the employee" in light of "generally accepted treatment protocols." 127.470(a), 127.467. Reviewers must examine the treating provider's medical records, 127.459, 127.460, and must give the provider an opportunity to discuss the treatment under review, 127.469.[3] Any doubt as to the reasonableness and necessity of a given procedure must be resolved in favor of the employee. 127.471(b). *47 URO's are instructed to complete their review and render a determination within 30 days of a completed request. 77 Pa. Stat. Ann. 531(6)(ii) ; 34 Pa. Code 127.465. If the URO finds in favor of the insurer, the employee may appeal the determination to a workers' compensation judge for a de novo review, but the insurer need not pay for the disputed services unless the URO's determination is overturned by the judge, or later by the courts. 77 Pa. Stat. Ann. 531(6)(iv) ; 34 Pa. Code 127.556. If the URO finds in favor of the employee, the insurer must pay the disputed bill immediately, with 10 percent annual interest, as well as the cost of the utilization review.[4] 34 Pa. Code 127.208(e); 77 Pa. Stat. Ann. 531(6)(iii) Respondents are 10 individual employees and 2 organizations representing employees who received medical benefits under the Act.[5] They claimed to have had payment of particular benefits withheld pursuant to the utilization review procedure set forth in the Act. They sued under Rev. Stat. 1979, 42 U.S. C. 1983, acting individually and on behalf of a class of similarly situated employees.[6] Named as defendants were various Pennsylvania officials who administer the Act, the director of the SWIF, the School District of Philadelphia *48 (which self-insures), and a number of private insurance companies who provide workers' compensation coverage in Pennsylvania. Respondents alleged that in withholding workers' compensation benefits without predeprivation notice and an opportunity to be heard, the state and private defendants, acting "under color of state law," deprived them of property in violation of due process. Amended Complaint ¶¶ 265-271, App. 43-44. They sought declaratory and injunctive relief, as well as damages. The District Court dismissed the private insurers from the lawsuit on the ground that they are not "state actors," and later dismissed the state officials who remained as defendants, as well as the school district, on the ground that the Act does not violate due process, App. to Pet. for Cert. 71a. The Court of Appeals for the Third Circuit disagreed on both issues. It held that a private insurer's decision to suspend payment under the Act—what the court called a "supersedeas"—constitutes state action. The court reasoned: "In creating and executing this system of entitlements, the [State] has enacted a complex and interwoven regulatory web enlisting the Bureau, the employers, and the insurance companies. The [State] extensively regulates and controls the Workers' Compensation system. Although the insurance companies are private entities, when they act under the construct of the Workers' Compensation system, they are providing public benefits which honor [s]tate entitlements. In effect, they become an arm of the State, fulfilling a uniquely governmental obligation under an entirely state-created, self-contained public benefit system. "The right to invoke the supersedeas, or to stop payments, is a power that traditionally was held in the hands of the State. When insurance companies invoke the supersedeas (i. e., suspension) of an employee's medical *49 benefits, they compromise an employee's [s]tatecreated entitlements. The insurers have no power to deprive or terminate such benefits without the permission and participation of the [State]. More importantly, however, the [State] is intimately involved in any decision by an insurer to terminate an employee's constitutionally protected benefits because an insurer cannot suspend medical payments without first obtaining authorization from the Bureau. However this authorization may be characterized, any deprivation that occurs is predicated upon the State's involvement." On the due process issue, the Court of Appeals did not address whether respondents have a protected property interest in workers' compensation medical benefits, stating that "[n]either party disputes" this point. Thus focusing on what process is "due," the court held that payment of bills may not be withheld until employees have had an opportunity to submit their view in writing as to the reasonableness and necessity of the disputed treatment to the URO. The court then determined that the relevant statutory language permitting the suspension of payment during utilization review was severable and struck it from the statute. We granted certiorari, to resolve a conflict on the status of private insurers providing workers' compensation coverage under state laws,[7] and to review the Court of Appeals' holding that due process prohibits insurers from withholding payment for disputed medical treatment pending review. II To state a claim for relief in an action brought under 1983, respondents must establish that they were deprived of a right secured by the Constitution or laws of the United States, and that the alleged deprivation was committed *50 under color of state law. Like the state-action requirement of the Fourteenth Amendment, the under-color-of-state-law element of 1983 excludes from its reach "`merely private conduct, no matter how discriminatory or wrongful,' "[8] Perhaps hoping to avoid the traditional application of our state-action cases, respondents attempt to characterize their claim as a "facial" or "direct" challenge to the utilization review procedures contained in the Act, in which case, the argument goes, we need not concern ourselves with the "identity of the defendant" or the "act or decision by a private actor or entity who is relying on the challenged law." Brief for Respondents 16. This argument, however, ignores our repeated insistence that state action requires both an alleged constitutional deprivation "caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible," and that "the party charged with the deprivation must be a person who may fairly be said to be a state actor." ; see Flagg In this case, while it may fairly be said that private insurers act "`with the knowledge of and pursuant to' " the state statute, ), thus satisfying the first requirement, respondents still must satisfy the second, whether the allegedly unconstitutional conduct is fairly attributable to the State.[9] *51 Our approach to this latter question begins by identifying "the specific conduct of which the plaintiff complains." ; see Here, respondents named as defendants both public officials and a class of private insurers and self-insured employers. Also named is the director of the SWIF and the School District of Philadelphia, a municipal corporation. The complaint alleged that the state and private defendants, acting under color of state law and pursuant to the Act, deprived them of property in violation of due process by withholding payment for medical treatment without prior notice and an opportunity to be heard. All agree that the public officials responsible for administering the workers' compensation system and the director of SWIF are state actors. See 9 F.3d, at 167.[10] Thus, the issue we address, in accordance with our cases, is whether a private insurer's decision to withhold payment for disputed medical treatment may be fairly attributable to the State so as to subject insurers to the constraints of the Fourteenth Amendment. Our answer to that question is "no." *52 In cases involving extensive state regulation of private activity, we have consistently held that "[t]he mere fact that a business is subject to state regulation does not by itself convert its action into that of the State for purposes of the Fourteenth Amendment." ; see Faithful application of the state-action requirement in these cases ensures that the prerogative of regulating private business remains with the States and the representative branches, not the courts. Thus, the private insurers in this case will not be held to constitutional standards unless "there is a sufficiently close nexus between the State and the challenged action of the regulated entity so that the action of the latter may be fairly treated as that of the State itself." Whether such a "close nexus" exists, our cases state, depends on whether the State "has exercised coercive power or has provided such significant encouragement, either overt or covert, that the choice must in law be deemed to be that of the State." ; see Flagg ; ; Moose Lodge No. 407 U.S. ; Action taken by private entities with the mere approval or acquiescence of the State is not state action. ; Flagg ; Here, respondents do not assert that the decision to invoke utilization review should be attributed to the State because the State compels or is directly involved in that decision. Obviously the State is not so involved. It authorizes, but does not require, insurers to withhold payments for disputed medical treatment. The decision to withhold payment, like the decision to transfer Medicaid patients to a lower level of care in is made by concededly private parties, and "turns on judgments made by private parties" without "standards established by the State." *53 Respondents do assert, however, that the decision to withhold payment to providers may be fairly attributable to the State because the State has "authorized" and "encouraged" it. Respondents' primary argument in this regard is that, in amending the Act to provide for utilization review and to grant insurers an option they previously did not have, the State purposely "encouraged" insurers to withhold payments for disputed medical treatment. This argument reads too much into the State's reform, and in any event cannot be squared with our cases. We do not doubt that the State's decision to provide insurers the option of deferring payment for unnecessary and unreasonable treatment pending review can in some sense be seen as encouraging them to do just that. But, as petitioners note, this kind of subtle encouragement is no more significant than that which inheres in the State's creation or modification of any legal remedy. We have never held that the mere availability of a remedy for wrongful conduct, even when the private use of that remedy serves important public interests, so significantly encourages the private activity as to make the State responsible for it. See Tulsa Professional Collection Services, ; see also 457 U. S., at ; Flagg — 166. It bears repeating that a finding of state action on this basis would be contrary to the "essential dichotomy," between public and private acts that our cases have consistently recognized. The State's decision to allow insurers to withhold payments pending review can just as easily be seen as state inaction, or more accurately, a legislative decision not to intervene in a dispute between an insurer and an employee over whether a particular treatment is reasonable and necessary. See Flagg -165. Before the 1993 amendments, Pennsylvania restricted the ability of an *54 insurer (after liability had been established, of course) to defer workers' compensation medical benefits, including payment for unreasonable and unnecessary treatment, beyond 30 days of receipt of the bill. The 1993 amendments, in effect, restored to insurers the narrow option, historically exercised by employers and insurers before the adoption of Pennsylvania's workers' compensation law, to defer payment of a bill until it is substantiated. The most that can be said of the statutory scheme, therefore, is that whereas it previously prohibited insurers from withholding payment for disputed medical services, it no longer does so. Such permission of a private choice cannot support a finding of state action. As we have said before, our cases will not tolerate "the imposition of Fourteenth Amendment restraints on private action by the simple device of characterizing the State's inaction as `authorization' or `encouragement.' " Nor does the State's role in creating, supervising, and setting standards for the URO process differ in any meaningful sense from the creation and administration of any forum for resolving disputes. While the decision of a URO, like that of any judicial official, may properly be considered state action, a private party's mere use of the State's dispute resolution machinery, without the "overt, significant assistance of state officials," Tulsa, cannot. The State, in the course of administering a many-faceted remedial system, has shifted one facet from favoring the employees to favoring the employer. This sort of decision occurs regularly in legislative review of such systems. But it cannot be said that such a change "encourages" or "authorizes" the insurer's actions as those terms are used in our state-action jurisprudence. We also reject the notion, relied upon by the Court of Appeals, that the challenged decisions are state action because insurers must first obtain "authorization" or "permission" from the Bureau before withholding payment. See 9 F.3d, As described in our earlier summary of the *55 statute and regulations, the Bureau's participation is limited to requiring insurers to file "a form prescribed by the Bureau," 34 Pa. Code 127.452, processing the request for technical compliance, and then forwarding the matter to a URO and informing the parties that utilization review has been requested. In we rejected the notion that the State, "by requiring completion of a form," is responsible for the private party's decision. The additional "paper shuffling" performed by the Bureau here in response to an insurers' request does not alter that conclusion. Respondents next contend that state action is present because the State has delegated to insurers "powers traditionally exclusively reserved to the State." Their argument here is twofold. Relying on respondents first argue that workers' compensation benefits are state-mandated "public benefits," and that the State has delegated the provision of these "public benefits" to private insurers. They also contend that the State has delegated to insurers the traditionally exclusive government function of determining whether and under what circumstances an injured worker's medical benefits may be suspended. The Court of Appeals apparently agreed on both points, stating that insurers "providing public benefits which honor State entitlements become an arm of the State, fulfilling a uniquely governmental obligation," 9 F.3d, and that "[t]he right to invoke the supersedeas, or to stop payments, is a power that traditionally was held in the hands of the State," We think neither argument has merit. West is readily distinguishable: There the State was constitutionally obligated to provide medical treatment to injured inmates, and the delegation of that traditionally exclusive public function to a private physician gave rise to a finding of state action. See -56. Here, on the other hand, nothing in Pennsylvania's Constitution or statutory scheme obligates the State to provide either medical treatment or workers' *56 compensation benefits to injured workers. See Instead, the State's workers' compensation law imposes that obligation on employers. This case is therefore not unlike where we noted that "while the Pennsylvania statute imposes an obligation to furnish service on regulated utilities, it imposes no such obligation on the State." ; see also San Francisco Arts & Athletics, ).[11] Nor is there any merit in respondents' argument that the State has delegated to insurers the traditionally exclusive governmental function of deciding whether to suspend payment for disputed medical treatment. Historical practice, as well as the state statutory scheme, does not support respondents' characterization. It is no doubt true that before the 1993 amendments an insurer who sought to withhold payment for disputed medical treatment was required to petition the Bureau, and could withhold payment only upon a favorable ruling by a workers' compensation judge, and then only for prospective treatment. But before Pennsylvania ever adopted its workers' compensation law, an insurer under contract with an employer to pay for its workers' reasonable and necessary medical expenses could withhold payment, for any reason or no reason, without any authorization or involvement of the State. The *57 insurer, of course, might become liable to the employer (or its workers) if the refusal to pay breached the contract or constituted "bad faith," but the obligation to pay would only arise after the employer had initiated a claim and reduced it to a judgment. That Pennsylvania first recognized an insurer's traditionally private prerogative to withhold payment, then restricted it, and now (in one limited respect) has restored it, cannot constitute the delegation of a traditionally exclusive public function. Like New York in Flagg Pennsylvania "has done nothing more than authorize (and indeed limit)—without participation by any public official— what [private insurers] would tend to do, even in the absence of such authorization," i. e., withhold payment for disputed medical treatment pending a determination that the treatment is, in fact, reasonable and necessary. n. 12. The Court of Appeals, in response to the various arguments advanced by respondents, seems to have figuratively thrown up its hands and fallen back on language in our decision in The Pennsylvania system, that court said, "inextricably entangles the insurance companies in a partnership with the Commonwealth such that they become an integral part of the state in administering the statutory scheme." 9 F.3d, Relying on Burton, respondents urge us to affirm the Court of Appeals' holding under a "joint participation" theory of state action. Burton was one of our early cases dealing with "state action" under the Fourteenth Amendment, and later cases have refined the vague "joint participation" test embodied in that case. and in particular, have established that "privately owned enterprises providing services that the State would not necessarily provide, even though they are extensively regulated, do not fall within the ambit of Burton. " 457 U. S., ; see -358. Here, workers' compensation insurers are at least *58 as extensively regulated as the private nursing facilities in and the private utility in Like those cases, though, the state statutory and regulatory scheme leaves the challenged decisions to the judgment of insurers. Respondents also rely on which contains general language about "joint participation" as a test for state action. But, as the opinion itself makes clear, its language must not be torn from the context out of which it arose: "The Court of Appeals erred in holding that in this context `joint participation' required something more than invoking the aid of state officials to take advantage of state-created attachment procedures. Whatever may be true in other contexts, this is sufficient when the State has created a system whereby state officials will attach property on the ex parte application of one party to a private dispute." In the present case, of course, there is no effort by petitioners to seize the property of respondents by an ex parte application to a state official. We conclude that an insurer's decision to withhold payment and seek utilization review of the reasonableness and necessity of particular medical treatment is not fairly attributable to the State. Respondents have therefore failed to satisfy an essential element of their 1983 claim. III Though our resolution of the state-action issue would be sufficient by itself to reverse the judgment of the Court of Appeals, we believe the court fundamentally misapprehended the nature of respondents' property interest at stake in this case, with ramifications not only for the state officials who are concededly state actors, but also for the private insurers who (under our holding in Part II) are not. If the Court of Appeals' ruling is left undisturbed, SWIF, which *59 insures both public and private employers, will be required to pay for all medical treatment (reasonable and necessary or not) within 30 days, while private insurers will be able to defer payment for disputed treatment pending utilization review.[12] Although we denied the petitions for certiorari filed by the school district, and the various state officials, we granted both questions presented in the petition filed by the private insurance companies. The second question therein states: "Whether the Due Process Clause requires workers' compensation insurers to pay disputed medical bills prior to a determination that the medical treatment was reasonable and necessary." Pet. for Cert. (i). This question has been briefed and argued, it is an important one, and it is squarely presented for review. We thus proceed to address it. The first inquiry in every due process challenge is whether the plaintiff has been deprived of a protected interest in "property" or "liberty." See U. S. Const., Amdt. 14 ("nor shall any State deprive any person of life, liberty, or property, without due process of law"); Only after finding the deprivation of a protected interest do we look to see if the State's procedures comport with due process. Here, respondents contend that Pennsylvania's workers' compensation law confers upon them a protected property interest in workers' compensation medical benefits. Under state law, respondents assert, once an employer's liability is established for a particular work-related injury, the employer *60 is obligated to pay for certain benefits, including partial wage replacement, compensation for permanent injury or disability, and medical care. See 77 Pa. Stat. Ann. 431, 531 It follows from this, the argument goes, that medical benefits are a state-created entitlement, and thus an insurer cannot withhold payment of medical benefits without affording an injured worker due process. In we held that an individual receiving federal welfare assistance has a statutorily created property interest in the continued receipt of those benefits. Likewise, in we recognized that the same was true for an individual receiving Social Security disability benefits. In both cases, an individual's entitlement to benefits had been established, and the question presented was whether predeprivation notice and a hearing were required before the individual's interest in continued payment of benefits could be terminated. See ; at Respondents' property interest in this case, however, is fundamentally different. Under Pennsylvania law, an employee is not entitled to payment for all medical treatment once the employer's initial liability is established, as respondents' argument assumes. Instead, the law expressly limits an employee's entitlement to "reasonable" and "necessary" medical treatment, and requires that disputes over the reasonableness and necessity of particular treatment must be resolved before an employer's obligation to pay— and an employee's entitlement to benefits—arise. See 77 Pa. Stat. Ann. 531(1)(i) ("The employer shall provide payment for reasonable surgical and medical services" (emphasis added)); 531(5) ("All payments to providers for treatment shall be made within thirty (30) days of receipt of such bills and records unless the employer or insurer disputes the reasonableness or necessity of the treatment " (emphasis added)). Thus, for an employee's property interest in the payment of medical benefits to attach under state law, the employee must clear two *61 hurdles: First, he must prove that an employer is liable for a work-related injury, and second, he must establish that the particular medical treatment at issue is reasonable and necessary. Only then does the employee's interest parallel that of the beneficiary of welfare assistance in and the recipient of disability benefits in Respondents obviously have not cleared both of these hurdles. While they indeed have established their initial eligibility for medical treatment, they have yet to make good on their claim that the particular medical treatment they received was reasonable and necessary. Consequently, they do not have a property interest—under the logic of their own argument—in having their providers paid for treatment that has yet to be found reasonable and necessary. To state the argument is to refute it, for what respondents ask in this case is that insurers be required to pay for patently unreasonable, unnecessary, and even fraudulent medical care without any right, under state law, to seek reimbursement from providers. Unsurprisingly, the Due Process Clause does not require such a result. Having concluded that respondents' due process claim falters for lack of a property interest in the payment of benefits, we need go no further.[] The judgment of the Court of Appeals is Reversed. Justice Ginsburg, concurring in part and concurring in the judgment.

Justice Ginsburg

concurring

American Mfrs. Mut. Ins. Co. v. Sullivan

1999-05-24

https://www.courtlistener.com/opinion/118268/american-mfrs-mut-ins-co-v-sullivan/

https://www.courtlistener.com/api/rest/v3/clusters/118268/

1998-028

I join Part III of the Court's opinion on the understanding that the Court rejects specifically, and only, respondents' demands *62 for constant payment of each medical bill, within 30 days of receipt, pending determination of the necessity or reasonableness of the medical treatment. See ante, at 61, n. 13. I do not doubt, however, that due process requires fair procedures for the adjudication of respondents' claims for workers' compensation benefits, including medical care. See Logan v. Zimmerman Brush Co., 455 U.S. 422, 428-431 (1982); Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 485 (1988); Brief for United States as Amicus Curiae 21-22.[*] Part III disposes of the instant controversy with respect to all insurers, the State Workmen's Insurance Fund as well as the private insurers. I therefore do not join the Court's extended endeavor, in Part II, to clean up and rein in our "state action" precedent. "It is a fundamental rule of judicial restraint . . . that this Court will not reach constitutional questions in advance of the necessity of deciding them." Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P. C., 467 U.S. 138, 157 (1984); see also Ashwander v. TVA, 297 U.S. 288, 347 (1936) (Brandeis, J., concurring). While this rule is ordinarily invoked to avoid deciding a constitutional question in lieu of a less tall ground for decision, its counsel of restraint is soundly applied to the instant situation: When a case presents two constitutional questions, one of which disposes of the entire case and the other of which does not, resolution of the case-dispositive question should suffice. Justice Breyer, with whom Justice Souter joins, concurring in part and concurring in the judgment. I join Parts I and II of the Court's opinion and its judgment. I agree with Part III insofar as it rejects respondents' *63 facial attack on the statute and also points out that respondents "do not contend that they have a property interest in their claims for payment, as distinct from the payments themselves." Ante, at 61, n. 13. I would add, however, that there may be individual circumstances in which the receipt of earlier payments leads an injured person reasonably to expect their continuation, in which case that person may well possess a constitutionally protected "property" interest. See, e. g., Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972) ("It is a purpose of the ancient institution of property to protect those claims upon which people rely in their daily lives, reliance that must not be arbitrarily undermined"); Perry v. Sindermann, 408 U.S. 593, 601 (1972); Goldberg v. Kelly, 397 U.S. 254, 262, and n. 8 (1970); Mathews v. Eldridge, 424 U.S. 319, 332 (1976). Justice Stevens, concurring in part and dissenting in part. Because the individual respondents suffered work-related injuries, they are entitled to have their employers, or the employers' insurers, pay for whatever "reasonable" and "necessary" treatment they may need. Pa. Stat. Ann., Tit. 77, §§ 531(1)(i), (5) (Purdon Supp. 1998). That right—whether described as a "claim" for payment or a "cause of action"— is unquestionably a species of property protected by the Due Process Clause of the Fourteenth Amendment. See, e. g., Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 485 (1988). Disputes over the reasonableness or necessity of particular treatments are resolved by decisionmakers who are state actors and who must follow procedures established by Pennsylvania law. Because the resolution of such disputes determines the scope of the claimants' property interests, the Constitution requires that the procedure be fair. Logan v. Zimmerman Brush Co., 455 U.S. 422 *64 (1982).[*] That is true whether the claim is asserted against a private insurance carrier or against a public entity that self-insures. It is equally clear that the State's duty to establish and administer a fair procedure for resolving the dispute obtains whether the dispute is initiated by the filing of a claim or by an insurer's decision to withhold payment until the reasonableness issue is resolved. In my judgment, the significant questions raised by this case are: (1) as in any case alleging that state statutory processes violate the Fourteenth Amendment, whether Pennsylvania's procedure was fair when the case was commenced, and (2), if not, whether it was fair after the State modified its rules in response to the Court of Appeals' decision. See ante, at 46, n. 3. In my opinion, the Court of Appeals correctly concluded that the original procedure was deficient because it did not give employees either notice that a request for utilization review would automatically suspend their benefits or an opportunity to provide relevant evidence and argument to the state actor vested with initial decisional authority. I would therefore affirm the judgment of the Court of Appeals insofar as it mandated the change described in the Court's n. 3, ante, at 46. I do not, however, find any constitutional defect in the procedures that are now in place, and therefore agree that the judgment should be reversed to the extent that it requires any additional modifications. It is not unfair, in and of itself, for a State to allow either a private or a publicly owned party to withhold payment of a state-created entitlement pending resolution of a dispute over its amount. Thus, although I agree with much of what the Court has written, I do not join its opinion for two reasons. First, I think it incorrectly assumes that the question whether the *65 insurance company is a state actor is relevant to the controlling question whether the state procedures are fair. The relevant state actors, rather than the particular parties to the payment disputes, are the state-appointed decisionmakers who implement the exclusive procedure that the State has created to protect respondents' rights. These state actors are defendants in this suit. See ante, at 51. Second, the Court fails to answer either the question whether the State's procedures were fair when the case was filed or the question whether they are fair now.

I join Part III of the Court's opinion on the understanding that the Court rejects specifically, and only, respondents' demands *62 for constant payment of each medical bill, within 30 days of receipt, pending determination of the necessity or reasonableness of the medical treatment. See ante, at 61, n. 13. I do not doubt, however, that due process requires fair procedures for the adjudication of respondents' claims for workers' compensation benefits, including medical care. See ; Tulsa Professional Collection Services, ; Brief for United States as Amicus Curiae 21-22.[*] Part III disposes of the instant controversy with respect to all insurers, the State Workmen's Insurance Fund as well as the private insurers. I therefore do not join the Court's extended endeavor, in Part II, to clean up and rein in our "state action" precedent. "It is a fundamental rule of judicial restraint that this Court will not reach constitutional questions in advance of the necessity of deciding them." Three Affiliated Tribes of Fort Berthold ; see also While this rule is ordinarily invoked to avoid deciding a constitutional question in lieu of a less tall ground for decision, its counsel of restraint is soundly applied to the instant situation: When a case presents two constitutional questions, one of which disposes of the entire case and the other of which does not, resolution of the case-dispositive question should suffice. Justice Breyer, with whom Justice Souter joins, concurring in part and concurring in the judgment. I join Parts I and II of the Court's opinion and its judgment. I agree with Part III insofar as it rejects respondents' *63 facial attack on the statute and also points out that respondents "do not contend that they have a property interest in their claims for payment, as distinct from the payments themselves." Ante, at 61, n. 13. I would add, however, that there may be individual circumstances in which the receipt of earlier payments leads an injured person reasonably to expect their continuation, in which case that person may well possess a constitutionally protected "property" interest. See, e. g., Board of Regents of State ; ; ; Justice Stevens, concurring in part and dissenting in part. Because the individual respondents suffered work-related injuries, they are entitled to have their employers, or the employers' insurers, pay for whatever "reasonable" and "necessary" treatment they may need. Pa. Stat. Ann., Tit. 77, 531(1)(i), (5) (Purdon Supp. 1998). That right—whether described as a "claim" for payment or a "cause of action"— is unquestionably a species of property protected by the Due Process Clause of the Fourteenth Amendment. See, e. g., Tulsa Professional Collection Services, Disputes over the reasonableness or necessity of particular treatments are resolved by decisionmakers who are state actors and who must follow procedures established by Pennsylvania law. Because the resolution of such disputes determines the scope of the claimants' property interests, the Constitution requires that the procedure be fair.[*] That is true whether the claim is asserted against a private insurance carrier or against a public entity that self-insures. It is equally clear that the State's duty to establish and administer a fair procedure for resolving the dispute obtains whether the dispute is initiated by the filing of a claim or by an insurer's decision to withhold payment until the reasonableness issue is resolved. In my judgment, the significant questions raised by this case are: (1) as in any case alleging that state statutory processes violate the Fourteenth Amendment, whether Pennsylvania's procedure was fair when the case was commenced, and (2), if not, whether it was fair after the State modified its rules in response to the Court of Appeals' decision. See ante, at 46, n. 3. In my opinion, the Court of Appeals correctly concluded that the original procedure was deficient because it did not give employees either notice that a request for utilization review would automatically suspend their benefits or an opportunity to provide relevant evidence and argument to the state actor vested with initial decisional authority. I would therefore affirm the judgment of the Court of Appeals insofar as it mandated the change described in the Court's n. 3, ante, at 46. I do not, however, find any constitutional defect in the procedures that are now in place, and therefore agree that the judgment should be reversed to the extent that it requires any additional modifications. It is not unfair, in and of itself, for a State to allow either a private or a publicly owned party to withhold payment of a state-created entitlement pending resolution of a dispute over its amount. Thus, although I agree with much of what the Court has written, I do not join its opinion for two reasons. First, I think it incorrectly assumes that the question whether the *65 insurance company is a state actor is relevant to the controlling question whether the state procedures are fair. The relevant state actors, rather than the particular parties to the payment disputes, are the state-appointed decisionmakers who implement the exclusive procedure that the State has created to protect respondents' rights. These state actors are defendants in this suit. See ante, at 51. Second, the Court fails to answer either the question whether the State's procedures were fair when the case was filed or the question whether they are fair now.

Justice Thomas

majority

Granite Rock Co. v. Teamsters

2010-06-24

https://www.courtlistener.com/opinion/149288/granite-rock-co-v-teamsters/

https://www.courtlistener.com/api/rest/v3/clusters/149288/

2009-083

This case involves an employer’s claims against a local union and the union’s international parent for economic damages arising out of a 2004 strike. The claims turn in part on whether a collective-bargaining agreement (CBA) containing a no-strike provision was validly formed during the strike period. The employer contends that it was, while the unions contend that it was not. Because the CBA contains an arbitration clause, we first address whether the parties’ dispute over the CBA’s ratification date was a matter for the District Court or an arbitrator to resolve. We conclude that it was a matter for judicial resolution. Next, we address whether the Court of Ap peals erred in declining the employer’s request to recog nize a new federal cause of action under §301(a) of the Labor Management Relations Act, 1947 (LMRA), 61 Stat. 156, 29 U.S. C. §185(a), for the international union’s alleged tortious interference with the CBA. The Court of Appeals did not err in declining this request. 2 GRANITE ROCK CO. v. TEAMSTERS Opinion of the Court I Petitioner Granite Rock Company is a concrete and building materials company that has operated in Califor nia since 1900. Granite Rock employs approximately 800 employees under different labor contracts with several unions, including respondent International Brotherhood of Teamsters, Local 287 (Local). Granite Rock and Local were parties to a 1999 CBA that expired in April 2004. The parties’ attempt to negotiate a new CBA hit an im passe and, on June 9, 2004, Local members initiated a strike in support of their contract demands.1 The strike continued until July 2, 2004, when the par ties reached agreement on the terms of a new CBA. The CBA contained a no-strike clause but did not directly address union members’ liability for any strike-related damages Granite Rock may have incurred before the new CBA was negotiated but after the prior CBA had expired. At the end of the negotiating session on the new CBA, Local’s business representative, George Netto, approached Granite Rock about executing a separate “back-to-work” agreement that would, among other things, hold union members harmless for damages incurred during the June 2004 strike. Netto did not make execution of such an agreement a condition of Local’s ratification of the CBA, or of Local’s decision to cease picketing. Thus, Local did not have a back-to-work or hold-harmless agreement in place when it voted to ratify the CBA on July 2, 2004. Respondent International Brotherhood of Teamsters (IBT), which had advised Local throughout the CBA nego —————— 1 In deciding the arbitration question in this case we rely upon the terms of the CBA and the facts in the District Court record. In review ing the judgment affirming dismissal of Granite Rock’s tort claims against respondent International Brotherhood of Teamsters (IBT) for failure to state a claim, we rely on the facts alleged in Granite Rock’s Third Amended Complaint. See, e.g., H. J. Inc. v. Northwestern Bell Telephone Co., 492 U.S. 229, 250 (1989). Cite as: 561 U. S. ____ (2010) 3 Opinion of the Court tiations and whose leadership and members supported the June strike, opposed Local’s decision to return to work without a back-to-work agreement shielding both Local and IBT members from liability for strike-related dam ages. In an effort to secure such an agreement, IBT in structed Local’s members not to honor their agreement to return to work on July 5, and instructed Local’s leaders to continue the work stoppage until Granite Rock agreed to hold Local and IBT members free from liability for the June strike. Netto demanded such an agreement on July 6, but Granite Rock refused the request and informed Local that the company would view any continued strike activity as a violation of the new CBA’s no-strike clause. IBT and Local responded by announcing a company-wide strike that involved numerous facilities and hundreds of workers, including members of IBT locals besides Local 287. According to Granite Rock, IBT not only instigated this strike; it supported and directed it. IBT provided pay and benefits to union members who refused to return to work, directed Local’s negotiations with Granite Rock, supported Local financially during the strike period with a $1.2 million loan, and represented to Granite Rock that IBT had unilateral authority to end the work stoppage in exchange for a hold-harmless agreement covering IBT members within and outside Local’s bargaining unit. On July 9, 2004, Granite Rock sued IBT and Local in the District Court, seeking an injunction against the ongoing strike and strike-related damages. Granite Rock’s complaint, originally and as amended, invoked federal jurisdiction under LMRA §301(a), alleged that the July 6 strike violated Local’s obligations under the CBA’s no strike provision, and asked the District Court to enjoin the strike because the hold-harmless dispute giving rise to the strike was an arbitrable grievance. See Boys Markets, Inc. v. Retail Clerks, 398 U.S. 235, 237–238, 253–254 (1970) 4 GRANITE ROCK CO. v. TEAMSTERS Opinion of the Court (holding that federal courts may enjoin a strike where a CBA contemplates arbitration of the dispute that occa sions the strike). The unions conceded that LMRA §301(a) gave the District Court jurisdiction over the suit but op posed Granite Rock’s complaint, asserting that the CBA was not validly ratified on July 2 (or at any other time relevant to the July 2004 strike) and, thus, its no-strike clause did not provide a basis for Granite Rock’s claims challenging the strike. The District Court initially denied Granite Rock’s re quest to enforce the CBA’s no-strike provision because Granite Rock was unable to produce evidence that the CBA was ratified on July 2. App. 203–213. Shortly after the District Court ruled, however, a Local member testi fied that Netto had put the new CBA to a ratification vote on July 2, and that the voting Local members unani mously approved the agreement. Based on this statement and supporting testimony from 12 other employees, Gran ite Rock moved for a new trial on its injunction and dam ages claims. On August 22, while that motion was pending, Local conducted a second successful “ratification” vote on the CBA, and on September 13, the day the District Court was scheduled to hear Granite Rock’s motion, the unions called off their strike. Although their return to work mooted Granite Rock’s request for an injunction, the District Court proceeded with the hearing and granted Granite Rock a new trial on its damages claims. The parties pro ceeded with discovery and Granite Rock amended its complaint, which already alleged federal2 claims for breach of the CBA against both Local and IBT, to add federal inducement of breach and interference with con —————— 2 This Court has recognized a federal common-law claim for breach of a CBA under LMRA §301(a). See, e.g., Textile Workers v. Lincoln Mills of Ala., 353 U.S. 448, 456 (1957). Cite as: 561 U. S. ____ (2010) 5 Opinion of the Court tract (hereinafter tortious interference) claims against IBT. IBT and Local both moved to dismiss. Among other things, IBT argued that Granite Rock could not plead a federal tort claim under §301(a) because that provision supports a federal cause of action only for breach of con tract. The District Court agreed and dismissed Granite Rock’s tortious interference claims. The District Court did not, however, grant Local’s separate motion to send the parties’ dispute over the CBA’s ratification date to arbitra tion.3 The District Court held that whether the CBA was ratified on July 2 or August 22 was an issue for the court to decide, and submitted the question to a jury. The jury reached a unanimous verdict that Local ratified the CBA on July 2, 2004. The District Court entered the verdict and ordered the parties to proceed with arbitration on Granite Rock’s breach-of-contract claims for strike-related damages. The Court of Appeals for the Ninth Circuit affirmed in part and reversed in part. See 546 F.3d 1169 (2008). The Court of Appeals affirmed the District Court’s dismissal of Granite Rock’s tortious interference claims against IBT. See id., at 1170–1175. But it disagreed with the District Court’s determination that the date of the CBA’s ratifica tion was a matter for judicial resolution. See id., at 1176– 1178. The Court of Appeals reasoned that the parties’ dispute over this issue was governed by the CBA’s arbitra tion clause because the clause clearly covered the related strike claims, the “national policy favoring arbitration” required that any ambiguity about the scope of the parties’ arbitration clause be resolved in favor of arbitrability, and, —————— 3 The CBA’s ratification date is important to Granite Rock’s underly ing suit for strike damages. If the District Court correctly concluded that the CBA was ratified on July 2, Granite Rock could argue on remand that the July work stoppage violated the CBA’s no-strike clause. 6 GRANITE ROCK CO. v. TEAMSTERS Opinion of the Court in any event, Granite Rock had “implicitly” consented to arbitrate the ratification-date dispute “by suing under the contract.” Id., at 1178 (internal quotation marks omitted). We granted certiorari. See 557 U. S. ___ (2009). II It is well settled in both commercial and labor cases that whether parties have agreed to “submi[t] a particular dispute to arbitration” is typically an “ ‘ issue for judicial determination.’ ” Howsam v. Dean Witter Reynolds, Inc., 537 U.S. 79, 83 (2002) (quoting AT&T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 649 (1986)); see John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 546–547 (1964). It is similarly well settled that where the dispute at issue concerns contract formation, the dispute is generally for courts to decide. See, e.g., First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995) (“When deciding whether the parties agreed to arbitrate a certain matter . . . courts generally . . . should apply ordinary . . . principles that govern the formation of contracts”); AT&T Technologies, supra, at 648−649 (explaining the settled rule in labor cases that “ ‘arbitration is a matter of con tract’ ” and “arbitrators derive their authority to resolve disputes only because the parties have agreed in advance to submit such grievances to arbitration”); Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 444, n. 1 (2006) (distinguishing treatment of the generally nonarbitral question whether an arbitration agreement was “ever concluded” from the question whether a contract con- taining an arbitration clause was illegal when formed, which question we held to be arbitrable in certain circumstances). These principles would neatly dispose of this case if the formation dispute here were typical. But it is not. It is based on when (not whether) the CBA that contains the parties’ arbitration clause was ratified and thereby Cite as: 561 U. S. ____ (2010) 7 Opinion of the Court formed.4 And at the time the District Court considered Local’s demand to send this issue to an arbitrator, Granite Rock, the party resisting arbitration, conceded both the formation and the validity of the CBA’s arbitration clause. These unusual facts require us to reemphasize the proper framework for deciding when disputes are arbitra ble under our precedents. Under that framework, a court may order arbitration of a particular dispute only where the court is satisfied that the parties agreed to arbitrate that dispute. See First Options, supra, at 943; AT&T Technologies, supra, at 648−649. To satisfy itself that such agreement exists, the court must resolve any issue that calls into question the formation or applicability of the specific arbitration clause that a party seeks to have the court enforce. See, e.g., Rent-A-Center, West, Inc. v. Jackson, ante, at 4−6 (opinion of SCALIA, J.). Where there is no provision validly committing them to an arbitrator, see ante, at 7, these issues typically concern the scope of the arbitration clause and its enforceability. In addition, these issues always include whether the clause was agreed to, and may include when that agreement was formed. A The parties agree that it was proper for the District Court to decide whether their ratification dispute was arbitrable.5 They disagree about whether the District Court answered the question correctly. Local contends that the District Court erred in holding that the CBA’s —————— 4 Although a union ratification vote is not always required for the provisions in a CBA to be considered validly formed, the parties agree that ratification was such a predicate here. See App. 349–351. 5 Because neither party argues that the arbitrator should decide this question, there is no need to apply the rule requiring “ ‘clear and unmistakable’ ” evidence of an agreement to arbitrate arbitrability. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944 (1995) (quoting AT&T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 649 (1986) (alterations omitted)). 8 GRANITE ROCK CO. v. TEAMSTERS Opinion of the Court ratification date was an issue for the court to decide. The Court of Appeals agreed, holding that the District Court’s refusal to send that dispute to arbitration violated two principles of arbitrability set forth in our precedents. See 546 F.3d, at 1177−1178. The first principle is that where, as here, parties concede that they have agreed to arbitrate some matters pursuant to an arbitration clause, the “law’s permissive policies in respect to arbitration” counsel that “ ‘ any doubts concerning the scope of arbitral issues should be resolved in favor of arbitration.’ ” First Options, supra, at 945 (quoting Mitsubishi Motors Corp. v. Soler Chrysler- Plymouth, Inc., 473 U.S. 614, 626 (1985)); see 546 F.3d, at 1177−1178 (citing this principle and the “national policy favoring arbitration” in concluding that arbitration clauses “are to be construed very broadly” (internal quotation marks and citations omitted)). The second principle the Court of Appeals invoked is that this presumption of arbitrability applies even to disputes about the enforce ability of the entire contract containing the arbitration clause, because at least in cases governed by the Federal Arbitration Act (FAA), 9 U.S. C. §1 et seq.,6 courts must treat the arbitration clause as severable from the contract in which it appears, and thus apply the clause to all dis putes within its scope “ ‘[u]nless the [validity] challenge is to the arbitration clause itself’ ” or the party “disputes the —————— 6 We, like the Court of Appeals, discuss precedents applying the FAA because they employ the same rules of arbitrability that govern labor cases. See, e.g., AT&T Technologies, supra, at 650. Indeed, the rule that arbitration is strictly a matter of consent—and thus that courts must typically decide any questions concerning the formation or scope of an arbitration agreement before ordering parties to comply with it— is the cornerstone of the framework the Court announced in the Steel workers Trilogy for deciding arbitrability disputes in LMRA cases. See Steelworkers v. American Mfg. Co., 363 U.S. 564, 567−568 (1960); Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582 (1960); Steelworkers v. Enterprise Wheel & Car Corp., 363 U.S. 593, 597 (1960). Cite as: 561 U. S. ____ (2010) 9 Opinion of the Court formation of [the] contract,” 546 F.3d, at 1176 (quoting Buckeye, 546 U.S., at 445−446); 546 F. 3d, at 1177, and n. 4 (explaining that it would treat the parties’ arbitration clause as enforceable with respect to the ratification-date dispute because no party argued that the “clause is invalid in any way”)). Local contends that our precedents, particularly those applying the “ ‘ federal policy favoring arbitration of labor disputes,’ ” permit no other result. Brief for Respondent Local, p. 15 (quoting Gateway Coal Co. v. Mine Workers, 414 U.S. 368, 377 (1974)); see Brief for Respondent Local, pp. 10–13; 16–25. Local, like the Court of Appeals, over reads our precedents. The language and holdings on which Local and the Court of Appeals rely cannot be di vorced from the first principle that underscores all of our arbitration decisions: Arbitration is strictly “a matter of consent,” Volt Information Sciences, Inc. v. Board of Trus tees of Leland Stanford Junior Univ., 489 U.S. 468, 479 (1989), and thus “is a way to resolve those disputes—but only those disputes—that the parties have agreed to sub mit to arbitration,” First Options, 514 U.S., at 943 (em phasis added).7 Applying this principle, our precedents hold that courts should order arbitration of a dispute only where the court is satisfied that neither the formation of the parties’ arbitration agreement nor (absent a valid provision specifically committing such disputes to an arbitrator) its enforceability or applicability to the dispute is in issue. Ibid. Where a party contests either or both matters, “the court” must resolve the disagreement. Ibid. Local nonetheless interprets some of our opinions to depart from this framework and to require arbitration of —————— 7 See also Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, 57 (1995); Dean Witter Reynolds Inc. v. Byrd, 470 U.S. 213, 219– 220 (1985); Scherk v. Alberto-Culver Co., 417 U.S. 506, 511 (1974); AT&T Technologies, supra, at 648; Warrior & Gulf, supra, at 582; United States v. Moorman, 338 U.S. 457, 462 (1950). 10 GRANITE ROCK CO. v. TEAMSTERS Opinion of the Court certain disputes, particularly labor disputes, based on policy grounds even where evidence of the parties’ agree ment to arbitrate the dispute in question is lacking. See Brief for Respondent Local, p. 16 (citing cases emphasizing the policy favoring arbitration generally and the “impres sive policy considerations favoring arbitration” in LMRA cases (internal quotation marks omitted)). That is not a fair reading of the opinions, all of which compelled arbitra tion of a dispute only after the Court was persuaded that the parties’ arbitration agreement was validly formed and that it covered the dispute in question and was legally enforceable. See, e.g., First Options, supra, at 944–945. That Buckeye and some of our cases applying a presump tion of arbitrability to certain disputes do not discuss each of these requirements merely reflects the fact that in those cases some of the requirements were so obviously satisfied that no discussion was needed. In Buckeye, the formation of the parties’ arbitration agreement was not at issue because the parties agreed that they had “concluded” an agreement to arbitrate and memorialized it as an arbitration clause in their loan contract. 546 U.S., at 444, n. 1. The arbitration clause’s scope was also not at issue, because the provision ex pressly applied to “ ‘[a]ny claim, dispute, or controversy . . . arising from or relating to . . . the validity, enforceability, or scope of this Arbitration Provision or the entire Agree ment.’ ” Id., at 442. The parties resisting arbitration (customers who agreed to the broad arbitration clause as a condition of using Buckeye’s loan service) claimed only that a usurious interest provision in the loan agreement invalidated the entire contract, including the arbitration clause, and thus precluded the Court from relying on the clause as evidence of the parties’ consent to arbitrate matters within its scope. See id., at 443. In rejecting this argument, we simply applied the requirement in §2 of the FAA that courts treat an arbitration clause as severable Cite as: 561 U. S. ____ (2010) 11 Opinion of the Court from the contract in which it appears and enforce it ac cording to its terms unless the party resisting arbitration specifically challenges the enforceability of the arbitration clause itself, see id., at 443−445 (citing 9 U.S. C. §2; Southland Corp. v. Keating, 465 U.S. 1, 4−5 (1984); Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 402−404 (1967)), or claims that the agreement to arbitrate was “[n]ever concluded,” 546 U.S., at 444, n. 1; see also Rent-A-Center, ante, at 6−7, and n. 2. Our cases invoking the federal “policy favoring arbitra tion” of commercial and labor disputes apply the same framework. They recognize that, except where “the par ties clearly and unmistakably provide otherwise,” AT&T Technologies, 475 U.S., at 649, it is “the court’s duty to interpret the agreement and to determine whether the parties intended to arbitrate grievances concerning” a particular matter, id., at 651. They then discharge this duty by: (1) applying the presumption of arbitrability only where a validly formed and enforceable arbitration agree ment is ambiguous about whether it covers the dispute at hand; and (2) adhering to the presumption and ordering arbitration only where the presumption is not rebutted. See id., at 651–652; Prima Paint Corp., supra, at 396–398; Gateway Coal Co. v. Mine Workers, 414 U.S. 368, 374–377 (1974); Drake Bakeries Inc. v. Bakery Workers, 370 U.S. 254, 256–257 (1962); Atkinson v. Sinclair Refining Co., 370 U.S. 238, 241–242 (1962); Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 576 (1960).8 —————— 8 That our labor arbitration precedents apply this rule is hardly sur prising. As noted above, see n. 6, supra, the rule is the foundation for the arbitrability framework this Court announced in the Steelworkers Trilogy. Local’s assertion that Warrior & Gulf suggests otherwise is misplaced. Although Warrior & Gulf contains language that might in isolation be misconstrued as establishing a presumption that labor disputes are arbitrable whenever they are not expressly excluded from an arbitration clause, 363 U.S., at 578–582, the opinion elsewhere 12 GRANITE ROCK CO. v. TEAMSTERS Opinion of the Court Local is thus wrong to suggest that the presumption of arbitrability we sometimes apply takes courts outside our settled framework for deciding arbitrability. The pre sumption simply assists in resolving arbitrability disputes within that framework. Confining the presumption to this role reflects its foundation in “the federal policy favoring arbitration.” As we have explained, this “policy” is merely an acknowledgment of the FAA’s commitment to “overrule the judiciary’s longstanding refusal to enforce agreements to arbitrate and to place such agreements upon the same footing as other contracts.” Volt, 489 U.S., at 478 (inter nal quotation marks and citations omitted). Accordingly, we have never held that this policy overrides the principle that a court may submit to arbitration “only those dis putes . . . that the parties have agreed to submit.” First Options, 514 U.S., at 943; see also Mastrobuono v. Shear son Lehman Hutton, Inc., 514 U.S. 52, 57 (1995) (“[T]he FAA’s proarbitration policy does not operate without regard to the wishes of the contract parties”); AT&T Tech nologies, 475 U.S., at 650−651 (applying the same rule to the “presumption of arbitrability for labor disputes”). Nor —————— emphasizes that even in LMRA cases, “courts” must construe arbitra tion clauses because “a party cannot be required to submit to arbitra tion any dispute which he has not agreed so to submit.” Id., at 582 (applying this rule and finding the dispute at issue arbitrable only after determining that the parties’ arbitration clause could be construed under standard principles of contract interpretation to cover it). Our use of the same rules in FAA cases is also unsurprising. The rules are suggested by the statute itself. Section 2 of the FAA requires courts to enforce valid and enforceable arbitration agreements accord ing to their terms. And §4 provides in pertinent part that where a party invokes the jurisdiction of a federal court over a matter that the court could adjudicate but for the presence of an arbitration clause, “[t]he court shall hear the parties” and “direc[t] the parties to proceed to arbitration in accordance with the terms of the agreement” except “[i]f the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue,” in which case “the court shall proceed summarily to the trial thereof.” 9 U.S. C. §4. Cite as: 561 U. S. ____ (2010) 13 Opinion of the Court have we held that courts may use policy considerations as a substitute for party agreement. See, e.g., id., at 648−651; Volt, supra, at 478. We have applied the pre sumption favoring arbitration, in FAA and in labor cases, only where it reflects, and derives its legitimacy from, a judicial conclusion that arbitration of a particular dispute is what the parties intended because their express agree ment to arbitrate was validly formed and (absent a provi sion clearly and validly committing such issues to an arbitrator) is legally enforceable and best construed to encompass the dispute. See First Options, supra, at 944– 945 (citing Mitsubishi, 473 U.S., at 626); Howsam, 537 U.S., at 83–84; AT&T Technologies, supra, at 650 (citing Warrior & Gulf, supra, at 582–583); Drake Bakeries, su pra, at 259–260. This simple framework compels reversal of the Court of Appeals’ judgment because it requires judicial resolution of two questions central to Local’s arbitration demand: when the CBA was formed, and whether its arbitration clause covers the matters Local wishes to arbitrate. B We begin by addressing the grounds on which the Court of Appeals reversed the District Court’s decision to decide the parties’ ratification-date dispute, which the parties characterize as a formation dispute because a union vote ratifying the CBA’s terms was necessary to form the con tract. See App. 351.9 For purposes of determining arbi —————— 9 The parties’ dispute about the CBA’s ratification date presents a formation question in the sense above, and is therefore not on all fours with, for example, the formation disputes we referenced in Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 444, n.1 (2006), which concerned whether, not when, an agreement to arbitrate was “con cluded.” That said, the manner in which the CBA’s ratification date relates to Local’s arbitration demand makes the ratification-date dispute in this case one that requires judicial resolution. See infra, at 14−19. 14 GRANITE ROCK CO. v. TEAMSTERS Opinion of the Court trability, when a contract is formed can be as critical as whether it was formed. That is the case where, as here, the date on which an agreement was ratified determines the date the agreement was formed, and thus determines whether the agreement’s provisions were enforceable during the period relevant to the parties’ dispute.10 This formation date question requires judicial resolution here because it relates to Local’s arbitration demand in such a way that the District Court was required to decide the CBA’s ratification date in order to determine whether the parties consented to arbitrate the matters covered by the demand.11 The parties agree that the CBA’s arbitra tion clause pertains only to disputes that “arise under” the agreement. Accordingly, to hold the parties’ ratification date dispute arbitrable, the Court of Appeals had to decide whether that dispute could be characterized as “arising under” the CBA. In answering this question in the af firmative, both Local and the Court of Appeals tied the arbitrability of the ratification-date issue—which Local raised as a defense to Granite Rock’s strike claims—to the arbitrability of the strike claims themselves. See id., at 347. They did so because the CBA’s arbitration clause, which pertains only to disputes “arising under” the CBA —————— 10 Our conclusions about the significance of the CBA’s ratification date to the specific arbitrability question before us do not disturb the general rule that parties may agree to arbitrate past disputes or future disputes based on past events. 11 In reaching this conclusion we need not, and do not, decide whether every dispute over a CBA’s ratification date would require judicial resolution. We recognize that ratification disputes in labor cases may often qualify as “formation disputes” for contract law purposes because contract law defines formation as acceptance of an offer on specified terms, and in many labor cases ratification of a CBA is necessary to satisfy this formation requirement. See App. 349−351. But it is not the mere labeling of a dispute for contract law purposes that determines whether an issue is arbitrable. The test for arbitrability remains whether the parties consented to arbitrate the dispute in question. Cite as: 561 U. S. ____ (2010) 15 Opinion of the Court and thus presupposes the CBA’s existence, would seem plainly to cover a dispute that “arises under” a specific substantive provision of the CBA, but does not so obvi ously cover disputes about the CBA’s own formation. Accordingly, the Court of Appeals relied upon the ratifica tion dispute’s relationship to Granite Rock’s claim that Local breached the CBA’s no-strike clause (a claim the Court of Appeals viewed as clearly “arising under” the CBA) to conclude that “the arbitration clause is certainly ‘susceptible of an interpretation’ that covers” Local’s for mation-date defense. 546 F.3d, at 1177, n. 4. The Court of Appeals overlooked the fact that this the ory of the ratification dispute’s arbitrability fails if the CBA was not formed at the time the unions engaged in the acts that gave rise to Granite Rock’s strike claims. The unions began their strike on July 6, 2004, and Granite Rock filed its suit on July 9. If, as Local asserts, the CBA containing the parties’ arbitration clause was not ratified, and thus not formed, until August 22, there was no CBA for the July no-strike dispute to “arise under,” and thus no valid basis for the Court of Appeals’ conclusion that Gran ite Rock’s July 9 claims arose under the CBA and were thus arbitrable along with, by extension, Local’s formation date defense to those claims.12 See ibid. For the foregoing reasons, resolution of the parties’ dispute about whether the CBA was ratified in July or August was central to deciding Local’s arbitration demand. Accordingly, the Court of Appeals erred in holding that it was not neces sary for the District Court to determine the CBA’s ratifica tion date in order to decide whether the parties agreed to arbitrate Granite Rock’s no-strike claim or the ratification date dispute Local raised as a defense to that claim. —————— 12 This analysis pertains only to the Court of Appeals’ decision, which did not engage the 11th-hour retroactivity argument Local raised in its merits brief in this Court, and that we address below. 16 GRANITE ROCK CO. v. TEAMSTERS Opinion of the Court Local seeks to address this flaw in the Court of Appeals’ decision by arguing that in December 2004 the parties executed a document that rendered the CBA effective as of May 1, 2004 (the date the prior CBA expired), and that this effective-date language rendered the CBA’s arbitra tion clause (but not its no-strike clause) applicable to the July strike period notwithstanding Local’s view that the agreement was ratified in August (which ratification date Local continues to argue controls the period during which the no-strike clause applies). See Brief for Respondent Local, pp. 26–27; Tr. of Oral Arg. 32, 37−39. The Court of Appeals did not rule on the merits of this claim (i.e., it did not decide whether the CBA’s effective date language indeed renders some or all of the agreement’s provisions retroactively applicable to May 2004), and we need not do so either. Even accepting Local’s assertion that it raised this retroactivity argument in the District Court, see Brief for Respondent Local, p. 26,13 Local did not raise this argument in the Court of Appeals. Nor, more importantly, did Local’s brief in opposition to Granite Rock’s petition for certiorari raise the argument as an alternative ground on which this Court could or should affirm the Court of Ap peals’ judgment finding the ratification-date dispute arbi trable for the reasons discussed above. Accordingly, the argument is properly “deemed waived.” This Court’s Rule 15.2; Carcieri v. Salazar, 555 U. S. ___, ___ (2009) (slip op., at 15−16).14 —————— 13 This claim is questionable because Local’s February 2005 refer ences to the agreement “now in effect” are not obviously equivalent to the express retroactivity argument Local asserts in its merits brief in this Court. See Brief for Respondent Local, pp. 26−27. 14 JUSTICE SOTOMAYOR’s conclusion that we should nonetheless excuse Local’s waiver and consider the retroactivity argument, see post, at 5−6 (opinion concurring in part and dissenting in part), is flawed. This Court’s Rule 15.2 reflects the fact that our adversarial system assigns both sides responsibility for framing the issues in a case. The impor tance of enforcing the Rule is evident in cases where, as here, excusing Cite as: 561 U. S. ____ (2010) 17 Opinion of the Court C Although the foregoing is sufficient to reverse the Court of Appeals’ judgment, there is an additional reason to do so: The dispute here, whether labeled a formation dispute or not, falls outside the scope of the parties’ arbitration clause on grounds the presumption favoring arbitration cannot cure. Section 20 of the CBA provides in relevant part that “[a]ll disputes arising under this agreement shall be resolved in accordance with the [Grievance] procedure,” which includes arbitration. App. 434 (emphasis added); see also id., at 434–437. The parties’ ratification-date dispute cannot properly be characterized as falling within the (relatively narrow, cf., e.g., Drake Bakeries Inc., 370 U.S., at 256–257) scope of this provision for at least two reasons. First, we do not think the question whether the CBA was validly ratified on July 2, 2004—a question that concerns the CBA’s very existence—can fairly be said to “arise under” the CBA. Second, even if the “arising under” language could in isolation be construed to cover this dispute, Section 20’s remaining provisions all but foreclose such a reading by describing that section’s arbitration requirement as applicable to labor disagreements that are addressed in the CBA and are subject to its requirement of mandatory mediation. See App. 434–437 (requiring arbi tration of disputes “arising under” the CBA, but only after the Union and Employer have exhausted mandatory mediation, and limiting any arbitration decision under this provision to those “within the scope and terms of this agreement and . . . specifically limited to the matter submitted”). —————— a party’s noncompliance with it would require this Court to decide, in the first instance, a question whose resolution could affect this and other cases in a manner that the District Court and Court of Appeals did not have an opportunity to consider, and that the parties’ argu ments before this Court may not fully address. 18 GRANITE ROCK CO. v. TEAMSTERS Opinion of the Court The Court of Appeals’ contrary conclusion does not find support in the text of §20. The Court of Appeals’ only effort to grapple with that text misses the point because it focuses on whether Granite Rock’s claim to enforce the CBA’s no-strike provisions could be characterized as “aris ing under” the agreement. See 546 F.3d, at 1177, n. 4. Even assuming that claim can be characterized as “arising under” the CBA, it is not the issue here. The issue is whether the formation-date defense that Local raised in response to Granite Rock’s no-strike suit can be character ized as “arising under” the CBA. It cannot for the reasons we have explained, namely, the CBA provision requiring arbitration of disputes “arising under” the CBA is not fairly read to include a dispute about when the CBA came into existence. The Court of Appeals erred in failing to address this question and holding instead that the arbitra tion clause is “susceptible of an interpretation” that covers Local’s formation-date defense to Granite Rock’s suit “[b]ecause Granite Rock is suing ‘under’ the alleged new CBA” and “[a]rbitration clauses are to be construed very broadly.” Ibid.; see also id., at 1178. D Local’s remaining argument in support of the Court of Appeals’ judgment is similarly unavailing. Local reiter ates the Court of Appeals’ conclusion that Granite Rock “implicitly” consented to arbitration when it sued to en force the CBA’s no-strike and arbitrable grievance provi sions. See Brief for Respondent Local, pp. 17–18. We do not agree that by seeking an injunction against the strike so the parties could arbitrate the labor grievance that gave rise to it, Granite Rock also consented to arbitrate the ratification (formation) date dispute we address above. See 564 F.3d, at 1178. It is of course true that when Granite Rock sought that injunction it viewed the CBA (and all of its provisions) as enforceable. But Granite Cite as: 561 U. S. ____ (2010) 19 Opinion of the Court Rock’s decision to sue for compliance with the CBA’s grievance procedures on strike-related matters does not establish an agreement, “implicit” or otherwise, to arbi trate an issue (the CBA’s formation date) that Granite Rock did not raise, and that Granite Rock has always (and rightly, see Part II−C, supra) characterized as beyond the scope of the CBA’s arbitration clause. The mere fact that Local raised the formation date dispute as a defense to Granite Rock’s suit does not make that dispute attribut able to Granite Rock in the waiver or estoppel sense the Court of Appeals suggested, see 546 F.3d, at 1178, much less establish that Granite Rock agreed to arbitrate it by suing to enforce the CBA as to other matters. Accordingly, we hold that the parties’ dispute over the CBA’s formation date was for the District Court, not an arbitrator, to re solve, and remand for proceedings consistent with that conclusion. III We turn now to the claims available on remand. The parties agree that Granite Rock can bring a breach-of contract claim under LMRA §301(a) against Local as a CBA signatory, and against IBT as Local’s agent or alter ego. See Brief for Respondent IBT 10–13; Reply Brief for Petitioner 12–13 and n. 11.15 The question is whether —————— 15 Although the parties concede the general availability of such a claim against IBT, they dispute whether Granite Rock abandoned its agency or alter ego allegations in the course of this litigation. Compare Brief for Respondent IBT, p. 10 with Reply Brief for Petitioner 12–13, n. 11. Granite Rock concedes that it has abandoned its claim that IBT acted as Local’s undisclosed principal in orchestrating the ratification response to the July 2, 2004, CBA. See Plaintiff Granite Rock’s Memo randum of Points and Authorities in Opposition to Defendant IBT’s Motion to Dismiss in No. 5:04–cv–02767–JW (ND Cal., Aug. 7, 2006), Doc. 178, pp. 6, 8 (hereinafter Points and Authorities). But Granite Rock insists that it preserved its argument that Local served as IBT’s agent or alter ego when Local denied ratification and engaged in 20 GRANITE ROCK CO. v. TEAMSTERS Opinion of the Court Granite Rock may also bring a federal tort claim under §301(a) for IBT’s alleged interference with the CBA.16 Brief for Petitioner 32. The Court of Appeals joined virtu ally all other Circuits in holding that it would not recog nize such a claim under §301(a). Granite Rock asks us to reject this position as inconsis tent with federal labor law’s goal of promoting industrial peace and economic stability through judicial enforcement of CBAs, as well as with our precedents holding that a federal common law of labor contracts is necessary to further this goal. See id., at 31; see also, e.g., Textile Workers v. Lincoln Mills of Ala., 353 U.S. 448, 451 (1957). Explaining that IBT’s conduct in this case undermines the very core of the bargaining relationship federal labor laws exist to protect, Granite Rock argues that a federal common-law tort remedy for IBT’s conduct is necessary because other potential avenues for deterring and redress ing such conduct are either unavailable or insufficient. See Brief for Petitioner 32–33; Reply Brief for Petitioner 19–20. On the unavailable side of the ledger Granite Rock lists state-law tort claims, some of which this Court has held §301(a) pre-empts, as well as administrative (unfair labor practices) claims, which Granite Rock says the Na tional Labor Relations Board (NLRB) cannot entertain —————— unauthorized strike activity in July 2004. Nothing in the record before us unequivocally refutes this assertion. See App. 306, 311–315, 318; Points and Authorities 6, n. 3. Accordingly, nothing in this opinion forecloses the parties from litigating these claims on remand. 16 IBT argues that we should dismiss this question as improvidently granted because Granite Rock abandoned its tortious interference claim when it declared its intention to seek only contractual (as opposed to punitive) damages on the claim. See Brief for Respondent IBT 16. We reject this argument, which confuses Granite Rock’s decision to forgo the pursuit of punitive damages on its claim with a decision to abandon the claim itself. The two are not synonymous, and IBT cites no author ity for the proposition that Granite Rock must allege more than eco nomic damages to state a claim on which relief could be granted. Cite as: 561 U. S. ____ (2010) 21 Opinion of the Court against international unions that (like IBT) are not part of the certified local bargaining unit they allegedly control. On the insufficient side of the ledger Granite Rock lists federal common-law breach-of-contract claims, which Granite Rock says are difficult to prove against non-CBA signatories like IBT because international unions struc ture their relationships with local unions in a way that makes agency or alter ego difficult to establish. Based on these assessments, Granite Rock suggests that this case presents us with the choice of either recognizing the fed eral common-law tort claim Granite Rock seeks or sanc tioning conduct inconsistent with federal labor statutes and our own precedents. See Brief for Petitioner 13–14. We do not believe the choice is as stark as Granite Rock implies. It is of course true that we have construed “Sec tion 301 [to] authoriz[e] federal courts to fashion a body of federal law for the enforcement of collective bargaining agreements.” Lewis v. Benedict Coal Corp., 361 U.S. 459, 470 (1960) (citing Lincoln Mills, supra). But we have also emphasized that in developing this common law we “did not envision any freewheeling inquiry into what the fed eral courts might find to be the most desirable rule.” Howard Johnson Co. v. Hotel Employees, 417 U.S. 249, 255 (1974). The balance federal statutes strike between employer and union relations in the collective-bargaining arena is carefully calibrated, see, e.g., NLRB v. Drivers, 362 U.S. 274, 289–290 (1960), and as the parties’ briefs illustrate, creating a federal common-law tort cause of action would require a host of policy choices that could easily upset this balance, see Brief for Respondent IBT 42–44; Reply Brief for Petitioner 22–25. It is thus no surprise that virtually all Courts of Appeals have held that federal courts’ authority to “create a federal common law of collective bargaining agreements under section 301” should be confined to “a common law of contracts, not a source of independent rights, let alone tort rights; for 22 GRANITE ROCK CO. v. TEAMSTERS Opinion of the Court section 301 is . . . a grant of jurisdiction only to enforce contracts.” Brazinski v. Amoco Petroleum Additives Co., 6 F.3d 1176, 1180 (CA7 1993). We see no reason for a different result here because it would be premature to recognize the federal common law tort Granite Rock re quests in this case even assuming that §301(a) authorizes us to do so. In reaching this conclusion, we emphasize that the question before us is a narrow one. It is not whether the conduct Granite Rock challenges is remediable, but whether we should augment the claims already available to Granite Rock by creating a new federal common-law cause of action under §301(a). That we decline to do so does not mean that we approve of IBT’s alleged actions. Granite Rock describes a course of conduct that does indeed seem to strike at the heart of the collective bargaining process federal labor laws were designed to protect. As the record in this case demonstrates, however, a new federal tort claim is not the only possible remedy for this conduct. Granite Rock’s allegations have prompted favorable judgments not only from a federal jury, but also from the NLRB. In proceedings that predated those in which the District Court entered judgment for Granite Rock on the CBA’s formation date,17 the NLRB concluded that a “complete agreement” was reached on July 2, and that Local and IBT violated federal labor laws by attempt ing to delay the CBA’s ratification pending execution of a separate agreement favorable to IBT. See In re Teamsters Local 287, 347 N. L. R. B. 339, 340–341, and n. 1 (2006) (applying the remedial order on the 2004 conduct to both —————— 17 Although the Board and federal jury reached different conclusions with respect to the CBA’s ratification date, the discrepancy has little practical significance because the Board’s remedial order against Local and IBT gives “retroactive effect to the terms of the [CBA of] July 2, 2004, as if ratified on that date.” In re Teamsters Local 287, 347 N. L. R. B. 339, 340 (2006). Cite as: 561 U. S. ____ (2010) 23 Opinion of the Court Local and IBT on the grounds that IBT did not disaffiliate from the AFL–CIO until July 25, 2005). These proceedings, and the proceedings that remain to be conducted on remand, buttress our conclusion that Granite Rock’s case for a new federal common-law cause of action is based on assumptions about the adequacy of other avenues of relief that are at least questionable be cause they have not been fully tested in this case and thus their efficacy is simply not before us to evaluate. Notably, Granite Rock (like IBT and the Court of Appeals) assumes that federal common law provides the only possible basis for the type of tort claim it wishes to pursue. See Brief for Respondent IBT 33–34; Reply Brief for Petitioner 16. But Granite Rock did not litigate below, and thus does not present us with occasion to address, whether state law might provide a remedy. See, e.g., Steelworkers v. Raw son, 495 U.S. 362, 369−371 (1990); Textron Lycoming Reciprocating Engine Div., AVCO Corp. v. Automobile Workers, 523 U.S. 653, 656, 658 (1998). Nor did Granite Rock fully explore the breach-of-contract and administra tive causes of action it suggests are insufficient to remedy IBT’s conduct. For example, far from establishing that an agency or alter ego claim against IBT would be unsuccess ful, the record in this case suggests it might be easier to prove than usual if, as the NLRB’s decision observes, IBT and Local were affiliated in 2004 in a way relevant to Granite Rock’s claims. See In re Teamsters Local 287, supra, at 340, n. 6. Similarly, neither party has estab lished that the Board itself could not issue additional relief against IBT. IBT’s amici argue that the “overlap between Granite Rock’s §301 claim against the IBT and the NLRB General Counsel’s unfair labor practice com plaint against Local 287 brings into play the National Labor Relations Act rule that an international union commits an unfair labor practice by causing its affiliated local unions to ‘impose extraneous non-bargaining unit 24 GRANITE ROCK CO. v. TEAMSTERS Opinion of the Court considerations into the collective bargaining process.’ ” Brief for American Federation of Labor et al. 30–31 (quot ing Paperworkers Local 620, 309 N. L. R. B. 44, 44 (1992)). The fact that at least one Court of Appeals has recognized the viability of such a claim, see Kobell v. United Paper workers Int’l Union, 965 F.2d 1401, 1407−1409 (CA6 1992), further persuades us that Granite Rock’s argu ments do not justify recognition of a new federal tort claim under §301(a). * * * We reverse the Court of Appeals’ judgment on the arbi trability of the parties’ formation-date dispute, affirm its judgment dismissing Granite Rock’s claims against IBT to the extent those claims depend on the creation of a new federal common-law tort cause of action under §301(a), and remand the case for further proceedings consistent with this opinion. It is so ordered. Cite as: 561 U. S. ____ (2010) 1 Opinion of SOTOMAYOR, J. SUPREME COURT OF THE UNITED STATES _________________ No. 08–1214 _________________ GRANITE ROCK COMPANY, PETITIONER v. INTERNATIONAL BROTHERHOOD OF TEAMSTERS ET AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [June 24, 2010] JUSTICE SOTOMAYOR, with whom JUSTICE STEVENS joins, concurring in part and dissenting in part. I join Part III of the Court’s opinion, which holds that petitioner Granite Rock’s tortious interference claim against respondent International Brotherhood of Team sters (IBT) is not cognizable under §301(a) of the Labor Management Relations Act, 1947 (LMRA), 29 U.S. C. §185(a). I respectfully dissent, however, from the Court’s conclusion that the arbitration provision in the collective bargaining agreement (CBA) between Granite Rock and IBT Local 287 does not cover the parties’ dispute over whether Local 287 breached the CBA’s no-strike clause. In my judgment, the parties clearly agreed in the CBA to have this dispute resolved by an arbitrator, not a court. The legal principles that govern this case are simpler than the Court’s exposition suggests. Arbitration, all agree, “is a matter of contract and a party cannot be re quired to submit to arbitration any dispute which [it] has not agreed so to submit.” Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 582 (1960). Before ordering par ties to arbitrate, a court must therefore confirm (1) that the parties have an agreement to arbitrate and (2) that the agreement covers their dispute. See ante, at 9. In determining the scope of an arbitration agreement, “there 2 GRANITE ROCK CO. v. TEAMSTERS Opinion of SOTOMAYOR, J. is a presumption of arbitrability in the sense that ‘[a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpreta tion that covers the asserted dispute. Doubts should be resolved in favor of coverage.’ ” AT&T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 650 (1986) (quot ing Warrior, 363 U.S., at 582–583); see also John Wiley & Sons, Inc. v. Livingston, 376 U.S. 543, 550, n. 4 (1964) (“[W]hen a contract is scrutinized for evidence of an inten tion to arbitrate a particular kind of dispute, national labor policy requires, within reason, that an interpretation that covers the asserted dispute . . . be favored” (emphasis deleted; internal quotation marks omitted)).1 The application of these established precepts to the facts of this case strikes me as equally straightforward: It is undisputed that Granite Rock and Local 287 executed a CBA in December 2004. The parties made the CBA retro actively “effect[ive] from May 1, 2004,” the day after the expiration of their prior collective-bargaining agreement. App. to Pet. for Cert. A–190. Among other things, the CBA prohibited strikes and lockouts. Id., at A–181. The CBA authorized either party, in accordance with certain grievance procedures, to “refe[r] to arbitration” “[a]ll dis putes arising under this agreement,” except for three —————— 1 When the question is “ ‘who (primarily) should decide arbitrability’ ” (as opposed to “ ‘whether a particular merits-related dispute is arbitra ble’ ”), “the law reverses the presumption.” First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 944–945 (1995). In other words, “[u]nless the parties clearly and unmistakably provide otherwise,” it is presumed that courts, not arbitrators, are responsible for resolving antecedent questions concerning the scope of an arbitration agreement. AT&T Technologies, Inc. v. Communications Workers, 475 U.S. 643, 649 (1986). As the majority correctly observes, ante, at 7, n. 5, this case does not implicate the reversed presumption because both parties accept that a court, not an arbitrator, should resolve their current disagreement about whether their underlying dispute is arbitrable. Cite as: 561 U. S. ____ (2010) 3 Opinion of SOTOMAYOR, J. specified “classes of disputes” not implicated here. Id., at A–176 to A–179. Granite Rock claims that Local 287 breached the CBA’s no-strike clause by engaging in a work stoppage in July 2004. Local 287 contests this claim. Specifically, it con tends that it had no duty to abide by the no-strike clause in July because it did not vote to ratify the CBA until August. As I see it, the parties’ disagreement as to whether the no-strike clause proscribed the July work stoppage is plainly a “disput[e] arising under” the CBA and is therefore subject to arbitration as Local 287 de mands. Indeed, the parties’ no-strike dispute is indistin guishable from myriad other disputes that an employer and union might have concerning the interpretation and application of the substantive provisions of a collective bargaining agreement. These are precisely the sorts of controversies that labor arbitrators are called upon to resolve every day. The majority seems to agree that the CBA’s arbitration provision generally encompasses disputes between Gran ite Rock and Local 287 regarding the parties’ compliance with the terms of the CBA, including the no-strike clause. The majority contends, however, that Local 287’s “forma tion-date defense” raises a preliminary question of con tract formation that must be resolved by a court rather than an arbitrator. Ante, at 15. The majority’s reasoning appears to be the following: If Local 287 did not ratify the CBA until August, then there is “no valid basis” for apply ing the CBA’s arbitration provision to events that occurred in July. Ibid. The majority’s position is flatly inconsistent with the language of the CBA. The parties expressly chose to make the agreement effective from May 1, 2004. As a result, “the date on which [the] agreement was ratified” does not, as the majority contends, determine whether the parties’ dispute about the permissibility of the July work stoppage 4 GRANITE ROCK CO. v. TEAMSTERS Opinion of SOTOMAYOR, J. falls within the scope of the CBA’s arbitration provision. Ante, at 14. When it comes to answering the arbitrability question, it is entirely irrelevant whether Local 287 rati fied the CBA in August (as it contends) or in July (as Granite Rock contends). In either case, the parties’ dis pute—which postdates May 1—clearly “aris[es] under” the CBA, which is all the arbitration provision requires to make a dispute referable to an arbitrator. Cf. Litton Financial Printing Div., Litton Business Systems, Inc. v. NLRB, 501 U.S. 190, 201 (1991) (recognizing that “a collective-bargaining agreement might be drafted so as to eliminate any hiatus between expiration of the old and execution of the new agreement”).2 Given the CBA’s express retroactivity, the majority errs in treating Local 287’s ratification-date defense as a “for mation dispute” subject to judicial resolution. Ante, at 13. The defense simply goes to the merits of Granite Rock’s claim: Local 287 maintains that the no-strike clause should not be construed to apply to the July work stoppage because it had not ratified the CBA at the time of that action. Cf. First Options of Chicago, Inc. v. Kaplan, 514 U.S. 938, 942 (1995) (distinguishing a disagreement that “makes up the merits of the dispute” from a disagreement “about the arbitrability of the dispute”). Accordingly, the defense is necessarily a matter for the arbitrator, not the court. See AT&T, 475 U.S., at 651 (“[I]t is for the arbitra tor to determine the relative merits of the parties’ sub —————— 2 Notably, at the time they executed the CBA in December 2004, the parties were well aware that they disagreed about the legitimacy of the July work stoppage. Yet they made the CBA retroactive to May and declined to carve out their no-strike dispute from the arbitration provision, despite expressly excluding three other classes of disputes from arbitration. Cf. Steelworkers v. Warrior & Gulf Nav. Co., 363 U.S. 574, 584–585 (1960) (“In the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitra tion can prevail”). Cite as: 561 U. S. ____ (2010) 5 Opinion of SOTOMAYOR, J. stantive interpretations of the agreement”). Indeed, this Court has been emphatic that “courts . . . have no business weighing the merits of the grievance.” Steelworkers v. American Mfg. Co., 363 U.S. 564, 568 (1960). “When the judiciary undertakes to determine the merits of a griev ance under the guise of interpreting the [arbitration provi sions] of collective bargaining agreements, it usurps a function . . . entrusted to the arbitration tribunal.” Id., at 569; see also AT&T, 475 U.S., at 649 (“[I]n deciding whether the parties have agreed to submit a particular grievance to arbitration, a court is not to rule on the po tential merits of the underlying claims”); Warrior, 363 U.S., at 582, 585 (“[T]he judicial inquiry under [LMRA] §301 must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance”; “the court should view with suspicion an attempt to persuade it to become entangled in the construction of the substantive provisions of a labor agreement”). Attempting to sidestep this analysis, the majority de clares that Local 287 waived its retroactivity argument by failing in the courts below to challenge Granite Rock’s consistent characterization of the parties’ dispute as one of contract formation. See ante, at 16. As a result of Local 287’s omission, the District Court and Court of Appeals proceeded under the understanding that this case pre sented a formation question. It was not until its merits brief in this Court that Local 287 attempted to correct this mistaken premise by pointing to the parties’ execution of the December 2004 CBA with its May 2004 effective date. This Court’s rules “admonis[h] [counsel] that they have an obligation to the Court to point out in the brief in opposi tion [to certiorari], and not later, any perceived misstate ment made in the petition [for certiorari]”; nonjurisdic tional arguments not raised at that time “may be deemed waived.” This Court’s Rule 15.2. Although it is regretta ble and inexcusable that Local 287 did not present its 6 GRANITE ROCK CO. v. TEAMSTERS Opinion of SOTOMAYOR, J. argument earlier, I do not see it as one we can ignore. The question presented in this case presupposes that “it is disputed whether any binding contract exists.” Brief for Petitioner i. Because it is instead undisputed that the parties executed a binding contract in December 2004 that was effective as of May 2004, we can scarcely pretend that the parties have a formation dispute. Consideration of this fact is “a ‘predicate to an intelligent resolution’ of the question presented, and therefore ‘fairly included therein.’ ” Ohio v. Robinette, 519 U.S. 33, 38 (1996) (quot ing Vance v. Terrazas, 444 U.S. 252, 258, n. 5 (1980); this Court’s Rule 14.1(a)). Indeed, by declining to consider the plain terms of the parties’ agreement, the majority offers little more than “an opinion advising what the law would be upon a hypothetical state of facts.” Aetna Life Ins. Co. v. Haworth, 300 U.S. 227, 241 (1937). In view of the CBA’s effective date, I would hold that the parties agreed to arbitrate the no-strike dispute, including Local 287’s ratification-date defense, and I would affirm the judgment below on this alternative ground. Cf. Dandridge v. Wil liams, 397 U.S. 471, 475, n. 6 (1970) (“The prevailing party may, of course, assert in a reviewing court any ground in support of [the] judgment, whether or not that ground was relied upon or even considered by the trial court”)

his case involves an employer’s claims against a local union and the union’s international parent for economic damages arising out of a 2004 strike. he claims turn in part on whether a collective-bargaining agreement (BA) containing a no-strike provision was validly formed during the strike period. he employer contends that it was, while the unions contend that it was not. Because the BA contains an arbitration we first address whether the parties’ dispute over the BA’s ratification date was a matter for the District ourt or an arbitrator to resolve. We conclude that it was a matter for judicial resolution. Next, we address whether the ourt of Ap peals erred in declining the employer’s request to recog nize a new federal cause of action under of the Labor Management Relations Act, 1947 (LMRA), 1 Stat. 15, 29 U.S. for the international union’s alleged tortious interference with the BA. he ourt of Appeals did not err in declining this request. 2 GRANIE ROK O. v. EAMSERS Opinion of the ourt I Petitioner Granite Rock ompany is a concrete and building materials company that has operated in alifor nia since 1900. Granite Rock employs approximately 800 employees under different labor contracts with several unions, including respondent International Brotherhood of eamsters, Local 287 (Local). Granite Rock and Local were parties to a 1999 BA that expired in April 2004. he parties’ attempt to negotiate a new BA hit an im passe and, on June 9, 2004, Local members initiated a strike in support of their contract demands.1 he strike continued until July 2, 2004, when the par ties reached agreement on the terms of a new BA. he BA contained a no-strike but did not directly address union members’ liability for any strike-related damages Granite Rock may have incurred before the new BA was negotiated but after the prior BA had expired. At the end of the negotiating session on the new BA, Local’s business representative, George Netto, approached Granite Rock about executing a separate “back-to-work” agreement that would, among other things, hold union members harmless for damages incurred during the June 2004 strike. Netto did not make execution of such an agreement a condition of Local’s ratification of the BA, or of Local’s decision to cease picketing. hus, Local did not have a back-to-work or hold-harmless agreement in place when it voted to ratify the BA on July 2, 2004. Respondent International Brotherhood of eamsters (IB), which had advised Local throughout the BA nego —————— 1 In deciding the arbitration question in this case we rely upon the terms of the BA and the facts in the District ourt record. In review ing the judgment affirming dismissal of Granite Rock’s tort claims against respondent International Brotherhood of eamsters (IB) for failure to state a claim, we rely on the facts alleged in Granite Rock’s hird Amended omplaint. See, e.g., H. J. ite as: 51 U. S. (0) 3 Opinion of the ourt tiations and whose leadership and members supported the June strike, opposed Local’s decision to return to work without a back-to-work agreement shielding both Local and IB members from liability for strike-related dam ages. In an effort to secure such an agreement, IB in structed Local’s members not to honor their agreement to return to work on July 5, and instructed Local’s leaders to continue the work stoppage until Granite Rock agreed to hold Local and IB members free from liability for the June strike. Netto demanded such an agreement on July but Granite Rock refused the request and informed Local that the company would view any continued strike activity as a violation of the new BA’s no-strike IB and Local responded by announcing a company-wide strike that involved numerous facilities and hundreds of workers, including members of IB locals besides Local 287. According to Granite Rock, IB not only instigated this strike; it supported and directed it. IB provided pay and benefits to union members who refused to return to work, directed Local’s negotiations with Granite Rock, supported Local financially during the strike period with a $1.2 million loan, and represented to Granite Rock that IB had unilateral authority to end the work stoppage in exchange for a hold-harmless agreement covering IB members within and outside Local’s bargaining unit. On July 9, 2004, Granite Rock sued IB and Local in the District ourt, seeking an injunction against the ongoing strike and strike-related damages. Granite Rock’s complaint, originally and as amended, invoked federal jurisdiction under LMRA alleged that the July strike violated Local’s obligations under the BA’s no strike provision, and asked the District ourt to enjoin the strike because the hold-harmless dispute giving rise to the strike was an arbitrable grievance. See Boys Markets, Inc. v. Retail lerks, 4 GRANIE ROK O. v. EAMSERS Opinion of the ourt (holding that federal courts may enjoin a strike where a BA contemplates arbitration of the dispute that occa sions the strike). he unions conceded that LMRA gave the District ourt jurisdiction over the suit but op posed Granite Rock’s complaint, asserting that the BA was not validly ratified on July 2 (or at any other time relevant to the July 2004 strike) and, thus, its no-strike did not provide a basis for Granite Rock’s claims challenging the strike. he District ourt initially denied Granite Rock’s re quest to enforce the BA’s no-strike provision because Granite Rock was unable to produce evidence that the BA was ratified on July 2. App. 203–213. Shortly after the District ourt ruled, however, a Local member testi fied that Netto had put the new BA to a ratification vote on July 2, and that the voting Local members unani mously approved the agreement. Based on this statement and supporting testimony from 12 other employees, Gran ite Rock moved for a new trial on its injunction and dam ages claims. On August 22, while that motion was pending, Local conducted a second successful “ratification” vote on the BA, and on September 13, the day the District ourt was scheduled to hear Granite Rock’s motion, the unions called off their strike. Although their return to work mooted Granite Rock’s request for an injunction, the District ourt proceeded with the hearing and granted Granite Rock a new trial on its damages claims. he parties pro ceeded with discovery and Granite Rock amended its complaint, which already alleged federal2 claims for breach of the BA against both Local and IB, to add federal inducement of breach and interference with con —————— 2 his ourt has recognized a federal common-law claim for breach of a BA under LMRA See, e.g., extile ite as: 51 U. S. (0) 5 Opinion of the ourt tract (hereinafter tortious interference) claims against IB. IB and Local both moved to dismiss. Among other things, IB argued that Granite Rock could not plead a federal tort claim under because that provision supports a federal cause of action only for breach of con tract. he District ourt agreed and dismissed Granite Rock’s tortious interference claims. he District ourt did not, however, grant Local’s separate motion to send the parties’ dispute over the BA’s ratification date to arbitra tion.3 he District ourt held that whether the BA was ratified on July 2 or August 22 was an issue for the court to decide, and submitted the question to a jury. he jury reached a unanimous verdict that Local ratified the BA on July 2, 2004. he District ourt entered the verdict and ordered the parties to proceed with arbitration on Granite Rock’s breach-of-contract claims for strike-related damages. he ourt of Appeals for the Ninth ircuit affirmed in part and reversed in part. See he ourt of Appeals affirmed the District ourt’s dismissal of Granite Rock’s tortious interference claims against IB. See at 1170–1175. But it disagreed with the District ourt’s determination that the date of the BA’s ratifica tion was a matter for judicial resolution. See at 117– 1178. he ourt of Appeals reasoned that the parties’ dispute over this issue was governed by the BA’s arbitra tion because the clearly covered the related strike claims, the “national policy favoring arbitration” required that any ambiguity about the scope of the parties’ arbitration be resolved in favor of arbitrability, and, —————— 3 he BA’s ratification date is important to Granite Rock’s underly ing suit for strike damages. If the District ourt correctly concluded that the BA was ratified on July 2, Granite Rock could argue on remand that the July work stoppage violated the BA’s no-strike GRANIE ROK O. v. EAMSERS Opinion of the ourt in any event, Granite Rock had “implicitly” consented to arbitrate the ratification-date dispute “by suing under the ” We granted certiorari. See 5 U. S. (2009). II It is well settled in both commercial and labor cases that whether parties have agreed to “submi[t] a particular dispute to arbitration” is typically an “ ‘ issue for judicial determination.’ ” ); see John Wiley & Sons, 54–547 (194). It is similarly well settled that where the dispute at issue concerns contract formation, the dispute is generally for courts to decide. See, e.g., First of hicago, (“When deciding whether the parties agreed to arbitrate a certain matter courts generally should apply ordinary principles that govern the formation of contracts”); A& − (explaining the settled rule in labor cases that “ ‘arbitration is a matter of con tract’ ” and “arbitrators derive their authority to resolve disputes only because the parties have agreed in advance to submit such grievances to arbitration”); heck ashing, (distinguishing treatment of the generally nonarbitral question whether an arbitration agreement was “ever concluded” from the question whether a contract con- taining an arbitration was illegal when formed, which question we held to be arbitrable in certain circumstances). hese principles would neatly dispose of this case if the formation dispute here were typical. But it is not. It is based on when (not whether) the BA that contains the parties’ arbitration was ratified and thereby ite as: 51 U. S. (0) 7 Opinion of the ourt formed.4 And at the time the District ourt considered Local’s demand to send this issue to an arbitrator, Granite Rock, the party resisting arbitration, conceded both the formation and the validity of the BA’s arbitration hese unusual facts require us to reemphasize the proper framework for deciding when disputes are arbitra ble under our precedents. Under that framework, a court may order arbitration of a particular dispute only where the court is satisfied that the parties agreed to arbitrate that dispute. See First ; A& −. o satisfy itself that such agreement exists, the court must resolve any issue that calls into question the formation or applicability of the specific arbitration that a party seeks to have the court enforce. See, e.g., Rent-A-enter, West, Inc. v. Jackson, ante, at 4− (opinion of SALIA, J.). Where there is no provision validly committing them to an arbitrator, see ante, at 7, these issues typically concern the scope of the arbitration and its enforceability. In addition, these issues always include whether the was agreed to, and may include when that agreement was formed. A he parties agree that it was proper for the District ourt to decide whether their ratification dispute was arbitrable.5 hey disagree about whether the District ourt answered the question correctly. Local contends that the District ourt erred in holding that the BA’s —————— 4 Although a union ratification vote is not always required for the provisions in a BA to be considered validly formed, the parties agree that ratification was such a predicate here. See App. 349–351. 5 Because neither party argues that the arbitrator should decide this question, there is no need to apply the rule requiring “ ‘clear and unmistakable’ ” evidence of an agreement to arbitrate arbitrability. First of hicago, (alterations omitted)). 8 GRANIE ROK O. v. EAMSERS Opinion of the ourt ratification date was an issue for the court to decide. he ourt of Appeals agreed, holding that the District ourt’s refusal to send that dispute to arbitration violated two principles of arbitrability set forth in our precedents. See −1178. he first principle is that where, as here, parties concede that they have agreed to arbitrate some matters pursuant to an arbitration the “law’s permissive policies in respect to arbitration” counsel that “ ‘ any doubts concerning the scope of arbitral issues should be resolved in favor of arbitration.’ ” First at 945 ); see 54 F.3d, at 1177−1178 (citing this principle and the “national policy favoring arbitration” in concluding that arbitration s “are to be construed very broadly” (internal quotation marks and citations omitted)). he second principle the ourt of Appeals invoked is that this presumption of arbitrability applies even to disputes about the enforce ability of the entire contract containing the arbitration because at least in cases governed by the Federal Arbitration Act (FAA), 9 U.S. et seq., courts must treat the arbitration as severable from the contract in which it appears, and thus apply the to all dis putes within its scope “ ‘[u]nless the [validity] challenge is to the arbitration itself’ ” or the party “disputes the —————— We, like the ourt of Appeals, discuss precedents applying the FAA because they employ the same rules of arbitrability that govern labor cases. See, e.g., A& Indeed, the rule that arbitration is strictly a matter of consent—and thus that courts must typically decide any questions concerning the formation or scope of an arbitration agreement before ordering parties to comply with it— is the cornerstone of the framework the ourt announced in the Steel workers rilogy for deciding arbitrability disputes in LMRA cases. See ; ; ite as: 51 U. S. (0) 9 Opinion of the ourt formation of [the] contract,” (quoting −44); and n. 4 (explaining that it would treat the parties’ arbitration as enforceable with respect to the ratification-date dispute because no party argued that the “ is invalid in any way”)). Local contends that our precedents, particularly those applying the “ ‘ federal policy favoring arbitration of labor disputes,’ ” permit no other result. Brief for Respondent Local, p. 15 ); see Brief for Respondent Local, pp. 10–13; 1–25. Local, like the ourt of Appeals, over reads our precedents. he language and holdings on which Local and the ourt of Appeals rely cannot be di vorced from the first principle that underscores all of our arbitration decisions: Arbitration is strictly “a matter of consent,” Information Sciences, and thus “is a way to resolve those disputes—but only those disputes—that the parties have agreed to sub mit to arbitration,” First 514 U.S., (em phasis added).7 Applying this principle, our precedents hold that courts should order arbitration of a dispute only where the court is satisfied that neither the formation of the parties’ arbitration agreement nor (absent a valid provision specifically committing such disputes to an arbitrator) its enforceability or applicability to the dispute is in issue. Where a party contests either or both matters, “the court” must resolve the disagreement. Local nonetheless interprets some of our opinions to depart from this framework and to require arbitration of —————— 7 See also Mastrobuono v. Shearson Lehman Hutton, Inc., 514 U.S. 52, ; Dean Witter Reynolds 219– 220 ; ; A& ; & at ; United 10 GRANIE ROK O. v. EAMSERS Opinion of the ourt certain disputes, particularly labor disputes, based on policy grounds even where evidence of the parties’ agree ment to arbitrate the dispute in question is lacking. See Brief for Respondent Local, p. 1 (citing cases emphasizing the policy favoring arbitration generally and the “impres sive policy considerations favoring arbitration” in LMRA cases ). hat is not a fair reading of the opinions, all of which compelled arbitra tion of a dispute only after the ourt was persuaded that the parties’ arbitration agreement was validly formed and that it covered the dispute in question and was legally enforceable. See, e.g., First at –945. hat and some of our cases applying a presump tion of arbitrability to certain disputes do not discuss each of these requirements merely reflects the fact that in those cases some of the requirements were so obviously satisfied that no discussion was needed. In the formation of the parties’ arbitration agreement was not at issue because the parties agreed that they had “concluded” an agreement to arbitrate and memorialized it as an arbitration in their loan 54 U.S., at he arbitration ’s scope was also not at issue, because the provision ex pressly applied to “ ‘[a]ny claim, dispute, or controversy arising from or relating to the validity, enforceability, or scope of this Arbitration Provision or the entire Agree ment.’ ” he parties resisting arbitration (customers who agreed to the broad arbitration as a condition of using ’s loan service) claimed only that a usurious interest provision in the loan agreement invalidated the entire contract, including the arbitration and thus precluded the ourt from relying on the as evidence of the parties’ consent to arbitrate matters within its scope. See In rejecting this argument, we simply applied the requirement in of the FAA that courts treat an arbitration as severable ite as: 51 U. S. (0) 11 Opinion of the ourt from the contract in which it appears and enforce it ac cording to its terms unless the party resisting arbitration specifically challenges the enforceability of the arbitration itself, see −445 ; Prima Paint 402−404 (197)), or claims that the agreement to arbitrate was “[n]ever concluded,” 54 U.S., at ; see also Rent-A-enter, ante, at −7, and n. 2. Our cases invoking the federal “policy favoring arbitra tion” of commercial and labor disputes apply the same framework. hey recognize that, except where “the par ties clearly and unmistakably provide otherwise,” A& 475 U.S., at it is “the court’s duty to interpret the agreement and to determine whether the parties intended to arbitrate grievances concerning” a particular matter, hey then discharge this duty by: (1) applying the presumption of arbitrability only where a validly formed and enforceable arbitration agree ment is ambiguous about whether it covers the dispute at hand; and (2) adhering to the presumption and ordering arbitration only where the presumption is not rebutted. See –52; Prima Paint at 39–398; Gateway oal 374– ; Drake Bakeries Inc. v. Bakery Workers, 370 U.S. 254, 25–2 ; ; Steelworkers v. & Nav. o.,8 —————— 8 hat our labor arbitration precedents apply this rule is hardly sur prising. As noted above, see n. the rule is the foundation for the arbitrability framework this ourt announced in the Steelworkers rilogy. Local’s assertion that & suggests otherwise is misplaced. Although & contains language that might in isolation be misconstrued as establishing a presumption that labor disputes are arbitrable whenever they are not expressly excluded from an arbitration 33 U.S., at 8–, the opinion elsewhere 12 GRANIE ROK O. v. EAMSERS Opinion of the ourt Local is thus wrong to suggest that the presumption of arbitrability we sometimes apply takes courts outside our settled framework for deciding arbitrability. he pre sumption simply assists in resolving arbitrability disputes within that framework. onfining the presumption to this role reflects its foundation in “the federal policy favoring arbitration.” As we have explained, this “policy” is merely an acknowledgment of the FAA’s commitment to “overrule the judiciary’s longstanding refusal to enforce agreements to arbitrate and to place such agreements upon the same footing as other contracts.” (inter nal quotation marks and citations omitted). Accordingly, we have never held that this policy overrides the principle that a court may submit to arbitration “only those dis putes that the parties have agreed to submit.” First 514 U.S., ; see also (“[]he FAA’s proarbitration policy does not operate without regard to the wishes of the contract parties”); A& ech 475 U.S., −51 (applying the same rule to the “presumption of arbitrability for labor disputes”). Nor —————— emphasizes that even in LMRA cases, “courts” must construe arbitra tion s because “a party cannot be required to submit to arbitra tion any dispute which he has not agreed so to submit.” at (applying this rule and finding the dispute at issue arbitrable only after determining that the parties’ arbitration could be construed under standard principles of contract interpretation to cover it). Our use of the same rules in FAA cases is also unsurprising. he rules are suggested by the statute itself. Section 2 of the FAA requires courts to enforce valid and enforceable arbitration agreements accord ing to their terms. And provides in pertinent part that where a party invokes the jurisdiction of a federal court over a matter that the court could adjudicate but for the presence of an arbitration “[t]he court shall hear the parties” and “direc[t] the parties to proceed to arbitration in accordance with the terms of the agreement” except “[i]f the making of the arbitration agreement or the failure, neglect, or refusal to perform the same be in issue,” in which case “the court shall proceed summarily to the trial thereof.” 9 U.S. ite as: 51 U. S. (0) 13 Opinion of the ourt have we held that courts may use policy considerations as a substitute for party agreement. See, e.g., at 48−51; We have applied the pre sumption favoring arbitration, in FAA and in labor cases, only where it reflects, and derives its legitimacy from, a judicial conclusion that arbitration of a particular dispute is what the parties intended because their express agree ment to arbitrate was validly formed and (absent a provi sion clearly and validly committing such issues to an arbitrator) is legally enforceable and best construed to encompass the dispute. See First at – 945 (citing 473 U.S., at ); Howsam, 537 U.S., at –84; A& (citing & at –5); Drake Bakeries, su pra, at 259–20. his simple framework compels reversal of the ourt of Appeals’ judgment because it requires judicial resolution of two questions central to Local’s arbitration demand: when the BA was formed, and whether its arbitration covers the matters Local wishes to arbitrate. B We begin by addressing the grounds on which the ourt of Appeals reversed the District ourt’s decision to decide the parties’ ratification-date dispute, which the parties characterize as a formation dispute because a union vote ratifying the BA’s terms was necessary to form the con tract. See App. 351.9 For purposes of determining arbi —————— 9 he parties’ dispute about the BA’s ratification date presents a formation question in the sense above, and is therefore not on all fours with, for example, the formation disputes we referenced in heck ashing, which concerned whether, not when, an agreement to arbitrate was “con cluded.” hat said, the manner in which the BA’s ratification date relates to Local’s arbitration demand makes the ratification-date dispute in this case one that requires judicial resolution. See infra, at 14−19. 14 GRANIE ROK O. v. EAMSERS Opinion of the ourt trability, when a contract is formed can be as critical as whether it was formed. hat is the case where, as here, the date on which an agreement was ratified determines the date the agreement was formed, and thus determines whether the agreement’s provisions were enforceable during the period relevant to the parties’ dispute.10 his formation date question requires judicial resolution here because it relates to Local’s arbitration demand in such a way that the District ourt was required to decide the BA’s ratification date in order to determine whether the parties consented to arbitrate the matters covered by the demand.11 he parties agree that the BA’s arbitra tion pertains only to disputes that “arise under” the agreement. Accordingly, to hold the parties’ ratification date dispute arbitrable, the ourt of Appeals had to decide whether that dispute could be characterized as “arising under” the BA. In answering this question in the af firmative, both Local and the ourt of Appeals tied the arbitrability of the ratification-date issue—which Local raised as a defense to Granite Rock’s strike claims—to the arbitrability of the strike claims themselves. See at 347. hey did so because the BA’s arbitration which pertains only to disputes “arising under” the BA —————— 10 Our conclusions about the significance of the BA’s ratification date to the specific arbitrability question before us do not disturb the general rule that parties may agree to arbitrate past disputes or future disputes based on past events. 11 In reaching this conclusion we need not, and do not, decide whether every dispute over a BA’s ratification date would require judicial resolution. We recognize that ratification disputes in labor cases may often qualify as “formation disputes” for contract law purposes because contract law defines formation as acceptance of an offer on specified terms, and in many labor cases ratification of a BA is necessary to satisfy this formation requirement. See App. 349−351. But it is not the mere labeling of a dispute for contract law purposes that determines whether an issue is arbitrable. he test for arbitrability remains whether the parties consented to arbitrate the dispute in question. ite as: 51 U. S. (0) 15 Opinion of the ourt and thus presupposes the BA’s existence, would seem plainly to cover a dispute that “arises under” a specific substantive provision of the BA, but does not so obvi ously cover disputes about the BA’s own formation. Accordingly, the ourt of Appeals relied upon the ratifica tion dispute’s relationship to Granite Rock’s claim that Local breached the BA’s no-strike (a claim the ourt of Appeals viewed as clearly “arising under” the BA) to conclude that “the arbitration is certainly ‘susceptible of an interpretation’ that covers” Local’s for mation-date n. 4. he ourt of Appeals overlooked the fact that this the ory of the ratification dispute’s arbitrability fails if the BA was not formed at the time the unions engaged in the acts that gave rise to Granite Rock’s strike claims. he unions began their strike on July 2004, and Granite Rock filed its suit on July 9. If, as Local asserts, the BA containing the parties’ arbitration was not ratified, and thus not formed, until August 22, there was no BA for the July no-strike dispute to “arise under,” and thus no valid basis for the ourt of Appeals’ conclusion that Gran ite Rock’s July 9 claims arose under the BA and were thus arbitrable along with, by extension, Local’s formation date defense to those claims.12 See For the foregoing reasons, resolution of the parties’ dispute about whether the BA was ratified in July or August was central to deciding Local’s arbitration demand. Accordingly, the ourt of Appeals erred in holding that it was not neces sary for the District ourt to determine the BA’s ratifica tion date in order to decide whether the parties agreed to arbitrate Granite Rock’s no-strike claim or the ratification date dispute Local raised as a defense to that claim. —————— 12 his analysis pertains only to the ourt of Appeals’ decision, which did not engage the 11th-hour retroactivity argument Local raised in its merits brief in this ourt, and that we address below. 1 GRANIE ROK O. v. EAMSERS Opinion of the ourt Local seeks to address this flaw in the ourt of Appeals’ decision by arguing that in December 2004 the parties executed a document that rendered the BA effective as of May 1, 2004 (the date the prior BA expired), and that this effective-date language rendered the BA’s arbitra tion (but not its no-strike ) applicable to the July strike period notwithstanding Local’s view that the agreement was ratified in August (which ratification date Local continues to argue controls the period during which the no-strike applies). See Brief for Respondent Local, pp. 2–27; r. of Oral Arg. 32, 37−39. he ourt of Appeals did not rule on the merits of this claim (i.e., it did not decide whether the BA’s effective date language indeed renders some or all of the agreement’s provisions retroactively applicable to May 2004), and we need not do so either. Even accepting Local’s assertion that it raised this retroactivity argument in the District ourt, see Brief for Respondent Local, p. 2,13 Local did not raise this argument in the ourt of Appeals. Nor, more importantly, did Local’s brief in opposition to Granite Rock’s petition for certiorari raise the argument as an alternative ground on which this ourt could or should affirm the ourt of Ap peals’ judgment finding the ratification-date dispute arbi trable for the reasons discussed above. Accordingly, the argument is properly “deemed waived.” his ourt’s Rule 15.2; arcieri v. Salazar, 555 U. S. (2009) (slip op., at 15−1).14 —————— 13 his claim is questionable because Local’s February 2005 refer ences to the agreement “now in effect” are not obviously equivalent to the express retroactivity argument Local asserts in its merits brief in this ourt. See Brief for Respondent Local, pp. 2−27. 14 JUSIE SOOMAYOR’s conclusion that we should nonetheless excuse Local’s waiver and consider the retroactivity argument, see post, at 5− (opinion concurring in part and dissenting in part), is flawed. his ourt’s Rule 15.2 reflects the fact that our adversarial system assigns both sides responsibility for framing the issues in a case. he impor tance of enforcing the Rule is evident in cases where, as here, excusing ite as: 51 U. S. (0) 17 Opinion of the ourt Although the foregoing is sufficient to reverse the ourt of Appeals’ judgment, there is an additional reason to do so: he dispute here, whether labeled a formation dispute or not, falls outside the scope of the parties’ arbitration on grounds the presumption favoring arbitration cannot cure. Section 20 of the BA provides in relevant part that “[a]ll disputes arising under this agreement shall be resolved in accordance with the [Grievance] procedure,” which includes arbitration. App. 434 (emphasis added); see also at 434–437. he parties’ ratification-date dispute cannot properly be characterized as falling within the (relatively narrow, cf., e.g., Drake Bakeries Inc., 370 U.S., at 25–2) scope of this provision for at least two reasons. First, we do not think the question whether the BA was validly ratified on July 2, 2004—a question that concerns the BA’s very existence—can fairly be said to “arise under” the BA. Second, even if the “arising under” language could in isolation be construed to cover this dispute, Section 20’s remaining provisions all but foreclose such a reading by describing that section’s arbitration requirement as applicable to labor disagreements that are addressed in the BA and are subject to its requirement of mandatory mediation. See App. 434–437 (requiring arbi tration of disputes “arising under” the BA, but only after the Union and Employer have exhausted mandatory mediation, and limiting any arbitration decision under this provision to those “within the scope and terms of this agreement and specifically limited to the matter submitted”). —————— a party’s noncompliance with it would require this ourt to decide, in the first instance, a question whose resolution could affect this and other cases in a manner that the District ourt and ourt of Appeals did not have an opportunity to consider, and that the parties’ argu ments before this ourt may not fully address. 18 GRANIE ROK O. v. EAMSERS Opinion of the ourt he ourt of Appeals’ contrary conclusion does not find support in the text of 0. he ourt of Appeals’ only effort to grapple with that text misses the point because it focuses on whether Granite Rock’s claim to enforce the BA’s no-strike provisions could be characterized as “aris ing under” the agreement. See n. 4. Even assuming that claim can be characterized as “arising under” the BA, it is not the issue here. he issue is whether the formation-date defense that Local raised in response to Granite Rock’s no-strike suit can be character ized as “arising under” the BA. It cannot for the reasons we have explained, namely, the BA provision requiring arbitration of disputes “arising under” the BA is not fairly read to include a dispute about when the BA came into existence. he ourt of Appeals erred in failing to address this question and holding instead that the arbitra tion is “susceptible of an interpretation” that covers Local’s formation-date defense to Granite Rock’s suit “[b]ecause Granite Rock is suing ‘under’ the alleged new BA” and “[a]rbitration s are to be construed very broadly.” ; see also D Local’s remaining argument in support of the ourt of Appeals’ judgment is similarly unavailing. Local reiter ates the ourt of Appeals’ conclusion that Granite Rock “implicitly” consented to arbitration when it sued to en force the BA’s no-strike and arbitrable grievance provi sions. See Brief for Respondent Local, pp. 17–18. We do not agree that by seeking an injunction against the strike so the parties could arbitrate the labor grievance that gave rise to it, Granite Rock also consented to arbitrate the ratification (formation) date dispute we address above. See 54 F.3d, It is of course true that when Granite Rock sought that injunction it viewed the BA (and all of its provisions) as enforceable. But Granite ite as: 51 U. S. (0) 19 Opinion of the ourt Rock’s decision to sue for compliance with the BA’s grievance procedures on strike-related matters does not establish an agreement, “implicit” or otherwise, to arbi trate an issue (the BA’s formation date) that Granite Rock did not raise, and that Granite Rock has always (and rightly, see Part II−, characterized as beyond the scope of the BA’s arbitration he mere fact that Local raised the formation date dispute as a defense to Granite Rock’s suit does not make that dispute attribut able to Granite Rock in the waiver or estoppel sense the ourt of Appeals suggested, see 54 F.3d, much less establish that Granite Rock agreed to arbitrate it by suing to enforce the BA as to other matters. Accordingly, we hold that the parties’ dispute over the BA’s formation date was for the District ourt, not an arbitrator, to re solve, and remand for proceedings consistent with that conclusion. III We turn now to the claims available on remand. he parties agree that Granite Rock can bring a breach-of contract claim under LMRA against Local as a BA signatory, and against IB as Local’s agent or alter ego. See Brief for Respondent IB 10–13; Reply Brief for Petitioner 12–13 and n. 11.15 he question is whether —————— 15 Although the parties concede the general availability of such a claim against IB, they dispute whether Granite Rock abandoned its agency or alter ego allegations in the course of this litigation. ompare Brief for Respondent IB, p. 10 with Reply Brief for Petitioner 12–13, n. 11. Granite Rock concedes that it has abandoned its claim that IB acted as Local’s undisclosed principal in orchestrating the ratification response to the July 2, 2004, BA. See Plaintiff Granite Rock’s Memo randum of Points and Authorities in Opposition to Defendant IB’s Motion to Dismiss in No. 5:04–cv–0277–JW Doc. 178, pp. 8 (hereinafter Points and Authorities). But Granite Rock insists that it preserved its argument that Local served as IB’s agent or alter ego when Local denied ratification and engaged in 20 GRANIE ROK O. v. EAMSERS Opinion of the ourt Granite Rock may also bring a federal tort claim under for IB’s alleged interference with the BA.1 Brief for Petitioner 32. he ourt of Appeals joined virtu ally all other ircuits in holding that it would not recog nize such a claim under Granite Rock asks us to reject this position as inconsis tent with federal labor law’s goal of promoting industrial peace and economic stability through judicial enforcement of BAs, as well as with our precedents holding that a federal common law of labor contracts is necessary to further this goal. See ; see also, e.g., extile Explaining that IB’s conduct in this case undermines the very core of the bargaining relationship federal labor laws exist to protect, Granite Rock argues that a federal common-law tort remedy for IB’s conduct is necessary because other potential avenues for deterring and redress ing such conduct are either unavailable or insufficient. See Brief for Petitioner 32–33; Reply Brief for Petitioner 19–20. On the unavailable side of the ledger Granite Rock lists state-law tort claims, some of which this ourt has held pre-empts, as well as administrative (unfair labor practices) claims, which Granite Rock says the Na tional Labor Relations Board (NLRB) cannot entertain —————— unauthorized strike activity in July 2004. Nothing in the record before us unequivocally refutes this assertion. See App. 30, 311–315, 318; Points and Authorities n. 3. Accordingly, nothing in this opinion forecloses the parties from litigating these claims on remand. 1 IB argues that we should dismiss this question as improvidently granted because Granite Rock abandoned its tortious interference claim when it declared its intention to seek only contractual (as opposed to punitive) damages on the claim. See Brief for Respondent IB 1. We reject this argument, which confuses Granite Rock’s decision to forgo the pursuit of punitive damages on its claim with a decision to abandon the claim itself. he two are not synonymous, and IB cites no author ity for the proposition that Granite Rock must allege more than eco nomic damages to state a claim on which relief could be granted. ite as: 51 U. S. (0) 21 Opinion of the ourt against international unions that (like IB) are not part of the certified local bargaining unit they allegedly control. On the insufficient side of the ledger Granite Rock lists federal common-law breach-of-contract claims, which Granite Rock says are difficult to prove against non-BA signatories like IB because international unions struc ture their relationships with local unions in a way that makes agency or alter ego difficult to establish. Based on these assessments, Granite Rock suggests that this case presents us with the choice of either recognizing the fed eral common-law tort claim Granite Rock seeks or sanc tioning conduct inconsistent with federal labor statutes and our own precedents. See Brief for Petitioner 13–14. We do not believe the choice is as stark as Granite Rock implies. It is of course true that we have construed “Sec tion 301 [to] authoriz[e] federal courts to fashion a body of federal law for the enforcement of collective bargaining agreements.” Lewis v. Benedict oal 31 U.S. 459, 470 (citing Lincoln But we have also emphasized that in developing this common law we “did not envision any freewheeling inquiry into what the fed eral courts might find to be the most desirable rule.” Howard Johnson o. v. Hotel Employees, 255 he balance federal statutes strike between employer and union relations in the collective-bargaining arena is carefully calibrated, see, e.g., 32 U.S. 274, and as the parties’ briefs illustrate, creating a federal common-law tort cause of action would require a host of policy choices that could easily upset this balance, see Brief for Respondent IB 42–44; Reply Brief for Petitioner 22–25. It is thus no surprise that virtually all ourts of Appeals have held that federal courts’ authority to “create a federal common law of collective bargaining agreements under section 301” should be confined to “a common law of contracts, not a source of independent rights, let alone tort rights; for 22 GRANIE ROK O. v. EAMSERS Opinion of the ourt section 301 is a grant of jurisdiction only to enforce contracts.” Brazinski v. Amoco Petroleum Additives o., F.3d 117, 1180 (A7 1993). We see no reason for a different result here because it would be premature to recognize the federal common law tort Granite Rock re quests in this case even assuming that authorizes us to do so. In reaching this conclusion, we emphasize that the question before us is a narrow one. It is not whether the conduct Granite Rock challenges is remediable, but whether we should augment the claims already available to Granite Rock by creating a new federal common-law cause of action under hat we decline to do so does not mean that we approve of IB’s alleged actions. Granite Rock describes a course of conduct that does indeed seem to strike at the heart of the collective bargaining process federal labor laws were designed to protect. As the record in this case demonstrates, however, a new federal tort claim is not the only possible remedy for this conduct. Granite Rock’s allegations have prompted favorable judgments not only from a federal jury, but also from the NLRB. In proceedings that predated those in which the District ourt entered judgment for Granite Rock on the BA’s formation date,17 the NLRB concluded that a “complete agreement” was reached on July 2, and that Local and IB violated federal labor laws by attempt ing to delay the BA’s ratification pending execution of a separate agreement favorable to IB. See In re eamsters Local 287, 347 N. L. R. B. 339, 340–341, and n. 1 ite as: 51 U. S. (0) 23 Opinion of the ourt Local and IB on the grounds that IB did not disaffiliate from the AFL–IO until July 25, 2005). hese proceedings, and the proceedings that remain to be conducted on remand, buttress our conclusion that Granite Rock’s case for a new federal common-law cause of action is based on assumptions about the adequacy of other avenues of relief that are at least questionable be cause they have not been fully tested in this case and thus their efficacy is simply not before us to evaluate. Notably, Granite Rock (like IB and the ourt of Appeals) assumes that federal common law provides the only possible basis for the type of tort claim it wishes to pursue. See Brief for Respondent IB 33–34; Reply Brief for Petitioner 1. But Granite Rock did not litigate below, and thus does not present us with occasion to address, whether state law might provide a remedy. See, e.g., 495 U.S. 32, 39−371 ; extron Lycoming Reciprocating Engine Div., AVO v. Automobile Workers, 523 U.S. 53, 5, 58 Nor did Granite Rock fully explore the breach-of-contract and administra tive causes of action it suggests are insufficient to remedy IB’s conduct. For example, far from establishing that an agency or alter ego claim against IB would be unsuccess ful, the record in this case suggests it might be easier to prove than usual if, as the NLRB’s decision observes, IB and Local were affiliated in 2004 in a way relevant to Granite Rock’s claims. See In re eamsters Local 287, at 340, n. Similarly, neither party has estab lished that the Board itself could not issue additional relief against IB. IB’s amici argue that the “overlap between Granite Rock’s claim against the IB and the NLRB General ounsel’s unfair labor practice com plaint against Local 287 brings into play the National Labor Relations Act rule that an international union commits an unfair labor practice by causing its affiliated local unions to ‘impose extraneous non-bargaining unit 24 GRANIE ROK O. v. EAMSERS Opinion of the ourt considerations into the collective bargaining process.’ ” Brief for American Federation of Labor et al. 30–31 (quot ing Paperworkers Local 20, 309 N. L. R. B. 44, 44 (1992)). he fact that at least one ourt of Appeals has recognized the viability of such a claim, see 95 F.2d 1401, 1407−1409 (A 1992), further persuades us that Granite Rock’s argu ments do not justify recognition of a new federal tort claim under * * * We reverse the ourt of Appeals’ judgment on the arbi trability of the parties’ formation-date dispute, affirm its judgment dismissing Granite Rock’s claims against IB to the extent those claims depend on the creation of a new federal common-law tort cause of action under and remand the case for further proceedings consistent with this opinion. It is so ordered. ite as: 51 U. S. (0) 1 Opinion of SOOMAYOR, J. SUPREME OUR OF HE UNIED SAES No. 08–1214 GRANIE ROK OMPANY, PEIIONER v. INERNAIONAL BROHERHOOD OF EAMSERS E AL. ON WRI OF ERIORARI O HE UNIED SAES OUR OF APPEALS FOR HE NINH IRUI [June 24, 0] JUSIE SOOMAYOR, with whom JUSIE SEVENS joins, concurring in part and dissenting in part. I join Part III of the ourt’s opinion, which holds that petitioner Granite Rock’s tortious interference claim against respondent International Brotherhood of eam sters (IB) is not cognizable under of the Labor Management Relations Act, 1947 (LMRA), 29 U.S. 85(a). I respectfully dissent, however, from the ourt’s conclusion that the arbitration provision in the collective bargaining agreement (BA) between Granite Rock and IB Local 287 does not cover the parties’ dispute over whether Local 287 breached the BA’s no-strike In my judgment, the parties clearly agreed in the BA to have this dispute resolved by an arbitrator, not a court. he legal principles that govern this case are simpler than the ourt’s exposition suggests. Arbitration, all agree, “is a matter of contract and a party cannot be re quired to submit to arbitration any dispute which [it] has not agreed so to submit.” Steelworkers v. & Nav. o., Before ordering par ties to arbitrate, a court must therefore confirm (1) that the parties have an agreement to arbitrate and (2) that the agreement covers their dispute. See ante, at 9. In determining the scope of an arbitration agreement, “there 2 GRANIE ROK O. v. EAMSERS Opinion of SOOMAYOR, J. is a presumption of arbitrability in the sense that ‘[a]n order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration is not susceptible of an interpreta tion that covers the asserted dispute. Doubts should be resolved in favor of coverage.’ ” A& Inc. v. ommunications Workers, 50 (quot ing 33 U.S., at –5); see also John Wiley & Sons, (194) (“[W]hen a contract is scrutinized for evidence of an inten tion to arbitrate a particular kind of dispute, national labor policy requires, within reason, that an interpretation that covers the asserted dispute be favored” (emphasis deleted; internal quotation marks omitted)).1 he application of these established precepts to the facts of this case strikes me as equally straightforward: It is undisputed that Granite Rock and Local 287 executed a BA in December 2004. he parties made the BA retro actively “effect[ive] from May 1, 2004,” the day after the expiration of their prior collective-bargaining agreement. App. to Pet. for ert. A–190. Among other things, the BA prohibited strikes and lockouts. at A–181. he BA authorized either party, in accordance with certain grievance procedures, to “refe[r] to arbitration” “[a]ll dis putes arising under this agreement,” except for three —————— 1 When the question is “ ‘who (primarily) should decide arbitrability’ ” (as opposed to “ ‘whether a particular merits-related dispute is arbitra ble’ ”), “the law reverses the presumption.” First of hicago, –945 In other words, “[u]nless the parties clearly and unmistakably provide otherwise,” it is presumed that courts, not arbitrators, are responsible for resolving antecedent questions concerning the scope of an arbitration agreement. A& As the majority correctly observes, ante, at 7, n. 5, this case does not implicate the reversed presumption because both parties accept that a court, not an arbitrator, should resolve their current disagreement about whether their underlying dispute is arbitrable. ite as: 51 U. S. (0) 3 Opinion of SOOMAYOR, J. specified “classes of disputes” not implicated here. at A–17 to A–179. Granite Rock claims that Local 287 breached the BA’s no-strike by engaging in a work stoppage in July 2004. Local 287 contests this claim. Specifically, it con tends that it had no duty to abide by the no-strike in July because it did not vote to ratify the BA until August. As I see it, the parties’ disagreement as to whether the no-strike proscribed the July work stoppage is plainly a “disput[e] arising under” the BA and is therefore subject to arbitration as Local 287 de mands. Indeed, the parties’ no-strike dispute is indistin guishable from myriad other disputes that an employer and union might have concerning the interpretation and application of the substantive provisions of a collective bargaining agreement. hese are precisely the sorts of controversies that labor arbitrators are called upon to resolve every day. he majority seems to agree that the BA’s arbitration provision generally encompasses disputes between Gran ite Rock and Local 287 regarding the parties’ compliance with the terms of the BA, including the no-strike he majority contends, however, that Local 287’s “forma tion-date defense” raises a preliminary question of con tract formation that must be resolved by a court rather than an arbitrator. Ante, at 15. he majority’s reasoning appears to be the following: If Local 287 did not ratify the BA until August, then there is “no valid basis” for apply ing the BA’s arbitration provision to events that occurred in July. he majority’s position is flatly inconsistent with the language of the BA. he parties expressly chose to make the agreement effective from May 1, 2004. As a result, “the date on which [the] agreement was ratified” does not, as the majority contends, determine whether the parties’ dispute about the permissibility of the July work stoppage 4 GRANIE ROK O. v. EAMSERS Opinion of SOOMAYOR, J. falls within the scope of the BA’s arbitration provision. Ante, at 14. When it comes to answering the arbitrability question, it is entirely irrelevant whether Local 287 rati fied the BA in August (as it contends) or in July (as Granite Rock contends). In either case, the parties’ dis pute—which postdates May 1—clearly “aris[es] under” the BA, which is all the arbitration provision requires to make a dispute referable to an arbitrator. f. Litton Financial Printing Div., Litton Business Systems, Inc. v. NLRB, (recognizing that “a collective-bargaining agreement might be drafted so as to eliminate any hiatus between expiration of the old and execution of the new agreement”).2 Given the BA’s express retroactivity, the majority errs in treating Local 287’s ratification-date defense as a “for mation dispute” subject to judicial resolution. Ante, at 13. he defense simply goes to the merits of Granite Rock’s claim: Local 287 maintains that the no-strike should not be construed to apply to the July work stoppage because it had not ratified the BA at the time of that action. f. First of hicago, 514 U.S. 9, 942 (distinguishing a disagreement that “makes up the merits of the dispute” from a disagreement “about the arbitrability of the dispute”). Accordingly, the defense is necessarily a matter for the arbitrator, not the court. See A&, 475 U.S., (“In the absence of any express provision excluding a particular grievance from arbitration, we think only the most forceful evidence of a purpose to exclude the claim from arbitra tion can prevail”). ite as: 51 U. S. (0) 5 Opinion of SOOMAYOR, J. stantive interpretations of the agreement”). Indeed, this ourt has been emphatic that “courts have no business weighing the merits of the grievance.” Steelworkers v. American Mfg. o., 58 “When the judiciary undertakes to determine the merits of a griev ance under the guise of interpreting the [arbitration provi sions] of collective bargaining agreements, it usurps a function entrusted to the arbitration tribunal.” at 59; see also A&, 475 U.S., at (“[I]n deciding whether the parties have agreed to submit a particular grievance to arbitration, a court is not to rule on the po tential merits of the underlying claims”); 33 U.S., at 585 (“[]he judicial inquiry under [LMRA] must be strictly confined to the question whether the reluctant party did agree to arbitrate the grievance”; “the court should view with suspicion an attempt to persuade it to become entangled in the construction of the substantive provisions of a labor agreement”). Attempting to sidestep this analysis, the majority de clares that Local 287 waived its retroactivity argument by failing in the courts below to challenge Granite Rock’s consistent characterization of the parties’ dispute as one of contract formation. See ante, at 1. As a result of Local 287’s omission, the District ourt and ourt of Appeals proceeded under the understanding that this case pre sented a formation question. It was not until its merits brief in this ourt that Local 287 attempted to correct this mistaken premise by pointing to the parties’ execution of the December 2004 BA with its May 2004 effective date. his ourt’s rules “admonis[h] [counsel] that they have an obligation to the ourt to point out in the brief in opposi tion [to certiorari], and not later, any perceived misstate ment made in the petition [for certiorari]”; nonjurisdic tional arguments not raised at that time “may be deemed waived.” his ourt’s Rule 15.2. Although it is regretta ble and inexcusable that Local 287 did not present its GRANIE ROK O. v. EAMSERS Opinion of SOOMAYOR, J. argument earlier, I do not see it as one we can ignore. he question presented in this case presupposes that “it is disputed whether any binding contract exists.” Brief for Petitioner i. Because it is instead undisputed that the parties executed a binding contract in December 2004 that was effective as of May 2004, we can scarcely pretend that the parties have a formation dispute. onsideration of this fact is “a ‘predicate to an intelligent resolution’ of the question presented, and therefore ‘fairly included therein.’ ” (199) ; this ourt’s Rule 14.1(a)). Indeed, by declining to consider the plain terms of the parties’ agreement, the majority offers little more than “an opinion advising what the law would be upon a hypothetical state of facts.” Aetna Life Ins. o. v. Haworth, In view of the BA’s effective date, I would hold that the parties agreed to arbitrate the no-strike dispute, including Local 287’s ratification-date defense, and I would affirm the judgment below on this alternative ground. f. 475, n. (“he prevailing party may, of course, assert in a reviewing court any ground in support of [the] judgment, whether or not that ground was relied upon or even considered by the trial court”)

Justice Sotomayor

majority

Los Angeles v. Patel

2015-06-22

https://www.courtlistener.com/opinion/2810524/los-angeles-v-patel/

https://www.courtlistener.com/api/rest/v3/clusters/2810524/

Respondents brought a Fourth Amendment challenge to a provision of the Los Angeles Municipal Code that com- pels “[e]very operator of a hotel to keep a record” contain- ing specified information concerning guests and to make this record “available to any officer of the Los Angeles Police Department for inspection” on demand. Los Ange- les Municipal Code §§41.49(2), (3)(a), (4) (2015). The questions presented are whether facial challenges to stat- utes can be brought under the Fourth Amendment and, if so, whether this provision of the Los Angeles Municipal Code is facially invalid. We hold facial challenges can be brought under the Fourth Amendment. We further hold that the provision of the Los Angeles Municipal Code that requires hotel operators to make their registries available to the police on demand is facially unconstitutional be- cause it penalizes them for declining to turn over their records without affording them any opportunity for pre- compliance review. 2 LOS ANGELES v. PATEL Opinion of the Court I A Los Angeles Municipal Code (LAMC) §41.49 requires hotel operators to record information about their guests, including: the guest’s name and address; the number of people in each guest’s party; the make, model, and license plate number of any guest’s vehicle parked on hotel prop- erty; the guest’s date and time of arrival and scheduled departure date; the room number assigned to the guest; the rate charged and amount collected for the room; and the method of payment. §41.49(2). Guests without reser- vations, those who pay for their rooms with cash, and any guests who rent a room for less than 12 hours must pre- sent photographic identification at the time of check-in, and hotel operators are required to record the number and expiration date of that document. §41.49(4). For those guests who check in using an electronic kiosk, the hotel’s records must also contain the guest’s credit card infor- mation. §41.49(2)(b). This information can be maintained in either electronic or paper form, but it must be “kept on the hotel premises in the guest reception or guest check-in area or in an office adjacent” thereto for a period of 90 days. §41.49(3)(a). Section 41.49(3)(a)—the only provision at issue here— states, in pertinent part, that hotel guest records “shall be made available to any officer of the Los Angeles Police Department for inspection,” provided that “[w]henever possible, the inspection shall be conducted at a time and in a manner that minimizes any interference with the opera- tion of the business.” A hotel operator’s failure to make his or her guest records available for police inspection is a misdemeanor punishable by up to six months in jail and a $1,000 fine. §11.00(m) (general provision applicable to entire LAMC). Cite as: 576 U. S. ____ (2015) 3 Opinion of the Court B In 2003, respondents, a group of motel operators along with a lodging association, sued the city of Los Angeles (City or petitioner) in three consolidated cases challenging the constitutionality of §41.49(3)(a). They sought declara- tory and injunctive relief. The parties “agree[d] that the sole issue in the . . . action [would be] a facial constitu- tional challenge” to §41.49(3)(a) under the Fourth Amend- ment. App. 195. They further stipulated that respondents have been subjected to mandatory record inspections under the ordinance without consent or a warrant. Id., at 194–195. Following a bench trial, the District Court entered judgment in favor of the City, holding that respondents’ facial challenge failed because they lacked a reasonable expectation of privacy in the records subject to inspection. A divided panel of the Ninth Circuit affirmed on the same grounds. 686 F.3d 1085 (2012). On rehearing en banc, however, the Court of Appeals reversed. 738 F.3d 1058, 1065 (2013). The en banc court first determined that a police officer’s nonconsensual inspection of hotel records under §41.49 is a Fourth Amendment “search” because “[t]he business records covered by §41.49 are the hotel’s private property” and the hotel therefore “has the right to exclude others from prying into the[ir] contents.” Id., at 1061. Next, the court assessed “whether the searches authorized by §41.49 are reasonable.” Id., at 1063. Relying on Donovan v. Lone Steer, Inc., 464 U.S. 408 (1984), and See v. Seattle, 387 U.S. 541 (1967), the court held that §41.49 is facially unconstitutional “as it authorizes inspections” of hotel records “without affording an opportunity to ‘obtain judi- cial review of the reasonableness of the demand prior to suffering penalties for refusing to comply.’ ” 738 F.3d, at 1065 (quoting See, 387 U.S., at 545). Two dissenting opinions were filed. The first dissent 4 LOS ANGELES v. PATEL Opinion of the Court argued that facial relief should rarely be available for Fourth Amendment challenges, and was inappropriate here because the ordinance would be constitutional in those circumstances where police officers demand access to hotel records with a warrant in hand or exigent circum- stances justify the search. 738 F.3d, at 1065–1070 (opin- ion of Tallman, J.). The second dissent conceded that inspections under §41.49 constitute Fourth Amendment searches, but faulted the majority for assessing the rea- sonableness of these searches without accounting for the weakness of the hotel operators’ privacy interest in the content of their guest registries. Id., at 1070–1074 (opin- ion of Clifton, J.). We granted certiorari, 574 U. S. ___ (2014), and now affirm. II We first clarify that facial challenges under the Fourth Amendment are not categorically barred or especially disfavored. A A facial challenge is an attack on a statute itself as opposed to a particular application. While such challenges are “the most difficult . . . to mount successfully,” United States v. Salerno, 481 U.S. 739, 745 (1987), the Court has have never held that these claims cannot be brought under any otherwise enforceable provision of the Constitu- tion. Cf. Fallon, Fact and Fiction About Facial Chal- lenges, 99 Cal. L. Rev. 915, 918 (2011) (pointing to several Terms in which “the Court adjudicated more facial chal- lenges on the merits than it did as-applied challenges”). Instead, the Court has allowed such challenges to proceed under a diverse array of constitutional provisions. See, e.g., Sorrell v. IMS Health Inc., 564 U. S. ___ (2011) (First Amendment); District of Columbia v. Heller, 554 U.S. 570 Cite as: 576 U. S. ____ (2015) 5 Opinion of the Court (2008) (Second Amendment); Chicago v. Morales, 527 U.S. 41 (1999) (Due Process Clause of the Fourteenth Amend- ment); Kraft Gen. Foods, Inc. v. Iowa Dept. of Revenue and Finance, 505 U.S. 71 (1992) (Foreign Commerce Clause). Fourth Amendment challenges to statutes authorizing warrantless searches are no exception. Any claim to the contrary reflects a misunderstanding of our decision in Sibron v. New York, 392 U.S. 40 (1968). In Sibron, two criminal defendants challenged the constitutionality of a statute authorizing police to, among other things, “ ‘stop any person abroad in a public place whom [they] reason- ably suspec[t] is committing, has committed or is about to commit a felony.” Id., at 43 (quoting then N. Y. Code Crim. Proc. §180–a). The Court held that the search of one of the defendants under the statute violated the Fourth Amendment, 392 U.S., at 59, 62, but refused to opine more broadly on the statute’s validity, stating that “[t]he constitutional validity of a warrantless search is pre-eminently the sort of question which can only be de- cided in the concrete factual context of the individual case.” Id., at 59. This statement from Sibron—which on its face might suggest an intent to foreclose all facial challenges to stat- utes authorizing warrantless searches—must be under- stood in the broader context of that case. In the same section of the opinion, the Court emphasized that the “operative categories” of the New York law at issue were “susceptible of a wide variety of interpretations,” id., at 60, and that “[the law] was passed too recently for the State’s highest court to have ruled upon many of the questions involving potential intersections with federal constitutional guarantees,” id., at 60, n. 20. Sibron thus stands for the simple proposition that claims for facial relief under the Fourth Amendment are unlikely to succeed when there is substantial ambiguity as to what conduct a statute au- thorizes: Where a statute consists of “extraordinarily 6 LOS ANGELES v. PATEL Opinion of the Court elastic categories,” it may be “impossible to tell” whether and to what extent it deviates from the requirements of the Fourth Amendment. Id., at 59, 61, n. 20. This reading of Sibron is confirmed by subsequent prec- edents. Since Sibron, the Court has entertained facial challenges under the Fourth Amendment to statutes authorizing warrantless searches. See, e.g., Vernonia School District 47J v. Acton, 515 U.S. 646, 648 (1995) (“We granted certiorari to decide whether” petitioner’s student athlete drug testing policy “violates the Fourth and Fourteenth Amendments to the United States Consti- tution”); Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 633, n. 10 (1989) (“[R]espondents have chal- lenged the administrative scheme on its face. We deal therefore with whether the [drug] tests contemplated by the regulation can ever be conducted”); cf. Illinois v. Krull, 480 U.S. 340, 354 (1987) (“[A] person subject to a statute authorizing searches without a warrant or probable cause may bring an action seeking a declaration that the statute is unconstitutional and an injunction barring its imple- mentation”). Perhaps more importantly, the Court has on numerous occasions declared statutes facially invalid under the Fourth Amendment. For instance, in Chandler v. Miller, 520 U.S. 305, 308–309 (1997), the Court struck down a Georgia statute requiring candidates for certain state offices to take and pass a drug test, concluding that this “requirement . . . [did] not fit within the closely guarded category of constitutionally permissible suspicion- less searches.” Similar examples abound. See, e.g., Fer- guson v. Charleston, 532 U.S. 67, 86 (2001) (holding that a hospital policy authorizing “nonconsensual, warrantless, and suspicionless searches” contravened the Fourth Amendment); Payton v. New York, 445 U.S. 573, 574, 576 (1980) (holding that a New York statute “authoriz[ing] police officers to enter a private residence without a war- rant and with force, if necessary, to make a routine felony Cite as: 576 U. S. ____ (2015) 7 Opinion of the Court arrest” was “not consistent with the Fourth Amendment”); Torres v. Puerto Rico, 442 U.S. 465, 466, 471 (1979) (hold- ing that a Puerto Rico statute authorizing “police to search the luggage of any person arriving in Puerto Rico from the United States” was unconstitutional because it failed to require either probable cause or a warrant). B Petitioner principally contends that facial challenges to statutes authorizing warrantless searches must fail be- cause such searches will never be unconstitutional in all applications. Cf. Salerno, 481 U.S., at 745 (to obtain facial relief the party seeking it “must establish that no set of circumstances exists under which the [statute] would be valid”). In particular, the City points to situa- tions where police are responding to an emergency, where the subject of the search consents to the intrusion, and where police are acting under a court-ordered warrant. See Brief for Petitioner 19–20. While petitioner frames this argument as an objection to respondents’ challenge in this case, its logic would preclude facial relief in every Fourth Amendment challenge to a statute authorizing warrantless searches. For this reason alone, the City’s argument must fail: The Court’s precedents demonstrate not only that facial challenges to statutes authorizing warrantless searches can be brought, but also that they can succeed. See Part II–A, supra. Moreover, the City’s argument misunderstands how courts analyze facial challenges. Under the most exacting standard the Court has prescribed for facial challenges, a plaintiff must establish that a “law is unconstitutional in all of its applications.” Washington State Grange v. Wash- ington State Republican Party, 552 U.S. 442, 449 (2008). But when assessing whether a statute meets this stand- ard, the Court has considered only applications of the 8 LOS ANGELES v. PATEL Opinion of the Court statute in which it actually authorizes or prohibits con- duct. For instance, in Planned Parenthood of Southeast- ern Pa. v. Casey, 505 U.S. 833 (1992), the Court struck down a provision of Pennsylvania’s abortion law that required a woman to notify her husband before obtaining an abortion. Those defending the statute argued that facial relief was inappropriate because most women volun- tarily notify their husbands about a planned abortion and for them the law would not impose an undue burden. The Court rejected this argument, explaining: The “[l]egislation is measured for consistency with the Consti- tution by its impact on those whose conduct it affects. . . . The proper focus of the constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.” Id., at 894. Similarly, when addressing a facial challenge to a stat- ute authorizing warrantless searches, the proper focus of the constitutional inquiry is searches that the law actually authorizes, not those for which it is irrelevant. If exigency or a warrant justifies an officer’s search, the subject of the search must permit it to proceed irrespective of whether it is authorized by statute. Statutes authorizing warrantless searches also do no work where the subject of a search has consented. Accordingly, the constitutional “applications” that petitioner claims prevent facial relief here are irrele- vant to our analysis because they do not involve actual applications of the statute.1 —————— 1 Relatedly, the United States claims that a statute authorizing war- rantless searches may still have independent force if it imposes a penalty for failing to cooperate in a search conducted under a warrant or in an exigency. See Brief for United States as Amicus Curiae 19. This argument gets things backwards. An otherwise facially unconsti- tutional statute cannot be saved from invalidation based solely on the existence of a penalty provision that applies when searches are not actually authorized by the statute. This argument is especially uncon- vincing where, as here, an independent obstruction of justice statute imposes a penalty for “willfully, resist[ing], delay[ing], or obstruct[ing] Cite as: 576 U. S. ____ (2015) 9 Opinion of the Court III Turning to the merits of the particular claim before us, we hold that §41.49(3)(a) is facially unconstitutional be- cause it fails to provide hotel operators with an opportu- nity for precompliance review. A The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” It further provides that “no Warrants shall issue, but upon probable cause.” Based on this constitutional text, the Court has repeatedly held that “ ‘searches conducted out- side the judicial process, without prior approval by [a] judge or [a] magistrate [judge], are per se unreasonable . . . subject only to a few specifically established and well- delineated exceptions.’ ” Arizona v. Gant, 556 U.S. 332, 338 (2009) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)). This rule “applies to commercial premises as well as to homes.” Marshall v. Barlow’s, Inc., 436 U.S. 307, 312 (1978). Search regimes where no warrant is ever required may be reasonable where “ ‘special needs . . . make the warrant and probable-cause requirement impracticable,’ ” Skinner, 489 U.S., at 619 (quoting Griffin v. Wisconsin, 483 U.S. 868, 873 (1987) (some internal quotation marks omitted)), and where the “primary purpose” of the searches is “[d]istinguishable from the general interest in crime con- trol,” Indianapolis v. Edmond, 531 U.S. 32, 44 (2000). Here, we assume that the searches authorized by §41.49 serve a “special need” other than conducting criminal investigations: They ensure compliance with the record- —————— any public officer . . . in the discharge or attempt to discharge any duty of his or her office of employment.” Cal. Penal Code Ann. §148(a)(1) (West 2014). 10 LOS ANGELES v. PATEL Opinion of the Court keeping requirement, which in turn deters criminals from operating on the hotels’ premises.2 The Court has referred to this kind of search as an “administrative searc[h].” Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 534 (1967). Thus, we consider whether §41.49 falls within the administrative search exception to the warrant requirement. The Court has held that absent consent, exigent circum- stances, or the like, in order for an administrative search to be constitutional, the subject of the search must be afforded an opportunity to obtain precompliance review before a neutral decisionmaker. See See, 387 U.S., at 545; Lone Steer, 464 U.S., at 415 (noting that an administra- tive search may proceed with only a subpoena where the subpoenaed party is sufficiently protected by the oppor- tunity to “question the reasonableness of the subpoena, before suffering any penalties for refusing to comply with it, by raising objections in an action in district court”). And, we see no reason why this minimal requirement is inapplicable here. While the Court has never attempted to prescribe the exact form an opportunity for precompliance review must take, the City does not even attempt to argue that §41.49(3)(a) affords hotel operators any opportunity whatsoever. Section 41.49(3)(a) is, therefore, facially invalid. A hotel owner who refuses to give an officer access to his or her registry can be arrested on the spot. The Court has held that business owners cannot reasonably be put to this kind of choice. Camara, 387 U.S., at 533 (holding that “broad statutory safeguards are no substitute for individ- ualized review, particularly when those safeguards may —————— 2 Respondents contend that §41.49’s principal purpose instead is to facilitate criminal investigation. Brief for Respondents 44–47. Because we find that the searches authorized by §41.49 are unconstitutional even if they serve the City’s asserted purpose, we decline to address this argument. Cite as: 576 U. S. ____ (2015) 11 Opinion of the Court only be invoked at the risk of a criminal penalty”). Absent an opportunity for precompliance review, the ordinance creates an intolerable risk that searches authorized by it will exceed statutory limits, or be used as a pretext to harass hotel operators and their guests. Even if a hotel has been searched 10 times a day, every day, for three months, without any violation being found, the operator can only refuse to comply with an officer’s demand to turn over the registry at his or her own peril. To be clear, we hold only that a hotel owner must be afforded an opportunity to have a neutral decisionmaker review an officer’s demand to search the registry before he or she faces penalties for failing to comply. Actual review need only occur in those rare instances where a hotel operator objects to turning over the registry. Moreover, this opportunity can be provided without imposing oner- ous burdens on those charged with an administrative scheme’s enforcement. For instance, respondents accept that the searches authorized by §41.49(3)(a) would be constitutional if they were performed pursuant to an administrative subpoena. Tr. of Oral Arg. 36–37. These subpoenas, which are typically a simple form, can be issued by the individual seeking the record—here, officers in the field—without probable cause that a regulation is being infringed. See See, 387 U.S., at 544 (“[T]he demand to inspect may be issued by the agency”). Issuing a sub- poena will usually be the full extent of an officer’s burden because “the great majority of businessmen can be ex- pected in normal course to consent to inspection without warrant.” Barlow’s, Inc., 436 U.S., at 316. Indeed, the City has cited no evidence suggesting that without an ordinance authorizing on-demand searches, hotel opera- tors would regularly refuse to cooperate with the police. In those instances, however, where a subpoenaed hotel operator believes that an attempted search is motivated by illicit purposes, respondents suggest it would be suffi- 12 LOS ANGELES v. PATEL Opinion of the Court cient if he or she could move to quash the subpoena before any search takes place. Tr. of Oral Arg. 38–39. A neutral decisionmaker, including an administrative law judge, would then review the subpoenaed party’s objections before deciding whether the subpoena is enforceable. Given the limited grounds on which a motion to quash can be granted, such challenges will likely be rare. And, in the even rarer event that an officer reasonably suspects that a hotel operator may tamper with the registry while the motion to quash is pending, he or she can guard the regis- try until the required hearing can occur, which ought not take long. Riley v. California, 573 U. S. ___ (2014) (slip op., at 12) (police may seize and hold a cell phone “to prevent destruction of evidence while seeking a warrant”); Illinois v. McArthur, 531 U.S. 326, 334 (2001) (citing cases upholding the constitutionality of “temporary re- straints where [they are] needed to preserve evidence until police could obtain a warrant”). Cf. Missouri v. McNeely, 569 U. S. ___ (2013) (slip op., at 12) (noting that many States have procedures in place for considering warrant applications telephonically).3 Procedures along these lines are ubiquitous. A 2002 report by the Department of Justice “identified approximately 335 existing administrative subpoena authorities held by various [federal] executive branch entities.” Office of Legal Policy, Report to Congress on the Use of Administrative Subpoena Authorities by Executive Branch Agencies and Entities 3, online at http://www.justice.gov/archive/olp/rpt_to_congress.htm (All Internet materials as visited June 19, 2015, and available in Clerk of Court’s case file). Their prevalence —————— 3 JUSTICE SCALIA professes to be baffled at the idea that we could suggest that in certain circumstances, police officers may seize some- thing that they cannot immediately search. Post, at 10–11 (dissenting opinion). But that is what this Court’s cases have explicitly endorsed, including Riley just last Term. Cite as: 576 U. S. ____ (2015) 13 Opinion of the Court confirms what common sense alone would otherwise lead us to conclude: In most contexts, business owners can be afforded at least an opportunity to contest an administra- tive search’s propriety without unduly compromising the government’s ability to achieve its regulatory aims. Of course administrative subpoenas are only one way in which an opportunity for precompliance review can be made available. But whatever the precise form, the avail- ability of precompliance review alters the dynamic be- tween the officer and the hotel to be searched, and reduces the risk that officers will use these administrative searches as a pretext to harass business owners. Finally, we underscore the narrow nature of our hold- ing. Respondents have not challenged and nothing in our opinion calls into question those parts of §41.49 that re- quire hotel operators to maintain guest registries contain- ing certain information. And, even absent legislative action to create a procedure along the lines discussed above, see supra, at 11, police will not be prevented from obtaining access to these documents. As they often do, hotel operators remain free to consent to searches of their registries and police can compel them to turn them over if they have a proper administrative warrant—including one that was issued ex parte—or if some other exception to the warrant requirement applies, including exigent circumstances.4 B Rather than arguing that §41.49(3)(a) is constitutional —————— 4 In suggesting that our holding today will somehow impede law en- forcement from achieving its important aims, JUSTICE SCALIA relies on instances where hotels were used as “prisons for migrants smuggled across the border and held for ransom” or as “rendezvous sites where child sex workers meet their clients on threat of violence from their procurers.” See post, at 2. It is hard to imagine circumstances more exigent than these. 14 LOS ANGELES v. PATEL Opinion of the Court under the general administrative search doctrine, the City and JUSTICE SCALIA contend that hotels are “closely regu- lated,” and that the ordinance is facially valid under the more relaxed standard that applies to searches of this category of businesses. Brief for Petitioner 28–47; post, at 5. They are wrong on both counts. Over the past 45 years, the Court has identified only four industries that “have such a history of government oversight that no reasonable expectation of privacy . . . could exist for a proprietor over the stock of such an en- terprise,” Barlow’s, Inc., 436 U. S., 313. Simply listing these industries refutes petitioner’s argument that hotels should be counted among them. Unlike liquor sales, Col- onnade Catering Corp. v. United States, 397 U.S. 72 (1970), firearms dealing, United States v. Biswell, 406 U.S. 311, 311–312 (1972), mining, Donovan v. Dewey, 452 U.S. 594 (1981), or running an automobile junkyard, New York v. Burger, 482 U.S. 691 (1987), nothing inherent in the operation of hotels poses a clear and significant risk to the public welfare. See, e.g., id., at 709 (“Automobile junkyards and vehicle dismantlers provide the major market for stolen vehicles and vehicle parts”); Dewey, 452 U.S., at 602 (describing the mining industry as “among the most hazardous in the country”).5 Moreover, “[t]he clear import of our cases is that the closely regulated industry . . . is the exception.” Barlow’s, Inc., 436 U.S., at 313. To classify hotels as pervasively regulated would permit what has always been a narrow exception to swallow the rule. The City wisely refrains from arguing that §41.49 itself renders hotels closely regulated. Nor do any of the other regulations on which —————— 5 JUSTICE SCALIA’s effort to depict hotels as raising a comparable de- gree of risk rings hollow. See post, at 1, 14. Hotels—like practically all commercial premises or services—can be put to use for nefarious ends. But unlike the industries that the Court has found to be closely regu- lated, hotels are not intrinsically dangerous. Cite as: 576 U. S. ____ (2015) 15 Opinion of the Court petitioner and JUSTICE SCALIA rely—regulations requiring hotels to, inter alia, maintain a license, collect taxes, conspicuously post their rates, and meet certain sanitary standards—establish a comprehensive scheme of regula- tion that distinguishes hotels from numerous other busi- nesses. See Brief for Petitioner 33–34 (citing regulations); post, at 7 (same). All businesses in Los Angeles need a license to operate. LAMC §§21.03(a), 21.09(a). While some regulations apply to a smaller set of businesses, see e.g. Cal. Code Regs., tit. 25, §40 (2015) (requiring linens to be changed between rental guests), online at http://www.oal.ca.gov/ccr.htm, these can hardly be said to have created a “ ‘comprehensive’ ” scheme that puts hotel owners on notice that their “ ‘property will be subject to periodic inspections undertaken for specific purposes,’ ” Burger, 482 U.S., at 705, n. 16 (quoting Dewey, 452 U.S., at 600). Instead, they are more akin to the widely appli- cable minimum wage and maximum hour rules that the Court rejected as a basis for deeming “the entirety of American interstate commerce” to be closely regulated in Barlow’s, Inc. 436 U.S., at 314. If such general regula- tions were sufficient to invoke the closely regulated indus- try exception, it would be hard to imagine a type of busi- ness that would not qualify. See Brief for Google Inc. as Amicus Curiae 16–17; Brief for the Chamber of Commerce of United States of America as Amicus Curiae 12–13. Petitioner attempts to recast this hodgepodge of reg- ulations as a comprehensive scheme by referring to a “centuries-old tradition” of warrantless searches of hotels. Brief for Petitioner 34–36. History is relevant when deter- mining whether an industry is closely regulated. See, e.g., Burger, 482 U.S., at 707. The historical record here, however, is not as clear as petitioner suggests. The City and JUSTICE SCALIA principally point to evidence that hotels were treated as public accommodations. Brief for Petitioner 34–36; post, at 5–6, and n. 1. For instance, the 16 LOS ANGELES v. PATEL Opinion of the Court Commonwealth of Massachusetts required innkeepers to “ ‘furnish[ ] . . . suitable provisions and lodging, for the refreshment and entertainment of strangers and travel- lers, pasturing and stable room, hay and provender . . . for their horses and cattle.’ ” Brief for Petitioner 35 (quoting An Act For The Due Regulation Of Licensed Houses (1786), reprinted in Acts and Laws of the Commonwealth of Massachusetts 209 (1893)). But laws obligating inns to provide suitable lodging to all paying guests are not the same as laws subjecting inns to warrantless searches. Petitioner also asserts that “[f]or a long time, [hotel] own- ers left their registers open to widespread inspection.” Brief for Petitioner 51. Setting aside that modern hotel registries contain sensitive information, such as driver’s licenses and credit card numbers for which there is no historic analog, the fact that some hotels chose to make registries accessible to the public has little bearing on whether government authorities could have viewed these documents on demand without a hotel’s consent. Even if we were to find that hotels are pervasively regulated, §41.49 would need to satisfy three additional criteria to be reasonable under the Fourth Amendment: (1) “[T]here must be a ‘substantial’ government interest that informs the regulatory scheme pursuant to which the inspection is made”; (2) “the warrantless inspections must be ‘necessary’ to further [the] regulatory scheme”; and (3) “the statute’s inspection program, in terms of the certainty and regularity of its application, [must] provid[e] a consti- tutionally adequate substitute for a warrant.” Burger, 482 U.S., at 702–703 (internal quotation marks omitted). We assume petitioner’s interest in ensuring that hotels main- tain accurate and complete registries might fulfill the first of these requirements, but conclude that §41.49 fails the second and third prongs of this test. The City claims that affording hotel operators any op- portunity for precompliance review would fatally under- Cite as: 576 U. S. ____ (2015) 17 Opinion of the Court mine the scheme’s efficacy by giving operators a chance to falsify their records. Brief for Petitioner 41–42. The Court has previously rejected this exact argument, which could be made regarding any recordkeeping requirement. See Barlow’s, Inc., 436 U.S., at 320 (“[It is not] apparent why the advantages of surprise would be lost if, after being refused entry, procedures were available for the [Labor] Secretary to seek an ex parte warrant to reappear at the premises without further notice to the establish- ment being inspected”); cf. Lone Steer, 464 U.S., at 411, 415 (affirming use of administrative subpoena which provided an opportunity for precompliance review as a means for obtaining “payroll and sales records”). We see no reason to accept it here. As explained above, nothing in our decision today pre- cludes an officer from conducting a surprise inspection by obtaining an ex parte warrant or, where an officer reason- ably suspects the registry would be altered, from guarding the registry pending a hearing on a motion to quash. See Barlow’s, Inc., 436 U.S., at 319–321; Riley, 573 U. S., at ___ (slip op., at 12). JUSTICE SCALIA’s claim that these procedures will prove unworkable given the large number of hotels in Los Angeles is a red herring. See post, at 11. While there are approximately 2,000 hotels in Los Ange- les, ibid., there is no basis to believe that resort to such measures will be needed to conduct spot checks in the vast majority of them. See supra, at 11. Section 41.49 is also constitutionally deficient under the “certainty and regularity” prong of the closely regulated industries test because it fails sufficiently to constrain police officers’ discretion as to which hotels to search and under what circumstances. While the Court has upheld inspection schemes of closely regulated industries that called for searches at least four times a year, Dewey, 452 U.S., at 604, or on a “regular basis,” Burger, 482 U.S., at 711, §41.49 imposes no comparable standard. 18 LOS ANGELES v. PATEL Opinion of the Court * * * For the foregoing reasons, we agree with the Ninth Circuit that §41.49(3)(a) is facially invalid insofar as it fails to provide any opportunity for precompliance review before a hotel must give its guest registry to the police for inspection. Accordingly, the judgment of the Ninth Circuit is affirmed. It is so ordered. Cite as: 576 U. S. ____ (2015) 1 SCALIA, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 13–1175 _________________ CITY OF LOS ANGELES, CALIFORNIA, PETITIONER v. NARANJIBHAI PATEL, ET AL.

Respondents brought a Fourth challenge to a provision of the Los ngeles Municipal Code that com- pels “[e]very operator of a hotel to keep a record” contain- ing specified information concerning guests and to make this record “available to any officer of the Los ngeles Police Department for inspection” on demand. Los nge- les Municipal Code (3)(a), (4) (2015). The questions presented are whether facial challenges to stat- utes can be brought under the Fourth and, if so, whether this provision of the Los ngeles Municipal Code is facially invalid. We hold facial challenges can be brought under the Fourth We further hold that the provision of the Los ngeles Municipal Code that requires hotel operators to make their registries available to the police on demand is facially unconstitutional be- cause it penalizes them for declining to turn over their records without affording them any opportunity for pre- compliance review. 2 LOS NGELES v. PTEL Opinion of the Court I Los ngeles Municipal Code (LMC) requires hotel operators to record information about their guests, including: the guest’s name and address; the number of people in each guest’s party; the make, model, and license plate number of any guest’s vehicle parked on hotel prop- erty; the guest’s date and time of arrival and scheduled departure date; the room number assigned to the guest; the rate charged and amount collected for the room; and the method of payment. (2). Guests without reser- vations, those who pay for their rooms with cash, and any guests who rent a room for less than 12 hours must pre- sent photographic identification at the time of check-in, and hotel operators are required to record the number and expiration date of that document. (4). For those guests who check in using an electronic kiosk, the hotel’s records must also contain the guest’s credit card infor- mation. (2)(b). This information can be maintained in either electronic or paper form, but it must be “kept on the hotel premises in the guest reception or guest check-in area or in an office adjacent” thereto for a period of 90 days. (3)(a). Section 41.49(3)(a)—the only provision at issue here— states, in pertinent part, that hotel guest records “shall be made available to any officer of the Los ngeles Police Department for inspection,” provided that “[w]henever possible, the inspection shall be conducted at a time and in a manner that minimizes any interference with the opera- tion of the business.” hotel operator’s failure to make his or her guest records available for police inspection is a misdemeanor punishable by up to six months in jail and a $1,000 fine. (general provision applicable to entire LMC). Cite as: 576 U. S. (2015) 3 Opinion of the Court B In 2003, respondents, a group of motel operators along with a lodging association, sued the city of Los ngeles (City or petitioner) in three consolidated cases challenging the constitutionality of (3)(a). They sought declara- tory and injunctive relief. The parties “agree[d] that the sole issue in the action [would be] a facial constitu- tional challenge” to (3)(a) under the Fourth mend- ment. pp. 195. They further stipulated that respondents have been subjected to mandatory record inspections under the ordinance without consent or a warrant. at 194–195. Following a bench trial, the District Court entered judgment in favor of the City, holding that respondents’ facial challenge failed because they lacked a reasonable expectation of privacy in the records subject to inspection. divided panel of the Ninth Circuit affirmed on the same grounds. On rehearing en banc, however, the Court of ppeals reversed. 1065 (2013). The en banc court first determined that a police officer’s nonconsensual inspection of hotel records under is a Fourth “search” because “[t]he business records covered by are the hotel’s private property” and the hotel therefore “has the right to exclude others from prying into the[ir] contents.” Next, the court assessed “whether the searches authorized by are reasonable.” Relying on and v. Seattle, 387 U.S. 541 the court held that is facially unconstitutional “as it authorizes inspections” of hotel records “without affording an opportunity to ‘obtain judi- cial review of the reasonableness of the demand prior to suffering penalties for refusing to comply.’ ” 738 F.3d, at 1065 (quoting ). Two dissenting opinions were filed. The first dissent 4 LOS NGELES v. PTEL Opinion of the Court argued that facial relief should rarely be available for Fourth challenges, and was inappropriate here because the ordinance would be constitutional in those circumstances where police officers demand access to hotel records with a warrant in hand or exigent circum- stances justify the –1070 (opin- ion of Tallman, J.). The second dissent conceded that inspections under constitute Fourth searches, but faulted the majority for assessing the rea- sonableness of these searches without accounting for the weakness of the hotel operators’ privacy interest in the content of their guest registries. at 1070–1074 (opin- ion of Clifton, J.). We granted certiorari, 574 U. S. (2014), and now affirm. II We first clarify that facial challenges under the Fourth are not categorically barred or especially disfavored. facial challenge is an attack on a statute itself as opposed to a particular application. While such challenges are “the most difficult to mount successfully,” United the Court has have never held that these claims cannot be brought under any otherwise enforceable provision of the Constitu- tion. Cf. Fallon, Fact and Fiction bout Facial Chal- lenges, (pointing to several Terms in which “the Court adjudicated more facial chal- lenges on the merits than it did as-applied challenges”). Instead, the Court has allowed such challenges to proceed under a diverse array of constitutional provisions. e.g., Sorrell v. IMS Health 564 U. S. (First ); District of Cite as: 576 U. S. (2015) 5 Opinion of the Court (Second ); Chicago v. Morales, 527 U.S. 41 (1999) (Due Process Clause of the Fourteenth mend- ment); Kraft Gen. Foods, Fourth challenges to statutes authorizing warrantless searches are no exception. ny claim to the contrary reflects a misunderstanding of our decision in In Sibron, two criminal defendants challenged the constitutionality of a statute authorizing police to, among other things, “ ‘stop any person abroad in a public place whom [they] reason- ably suspec[t] is committing, has committed or is about to commit a felony.” (“We granted certiorari to decide whether” petitioner’s student athlete drug testing policy “violates the Fourth and Fourteenth s to the United States Consti- tution”); Skinner v. Railway Labor Executives’ ssn., 489 U.S. 602, 633, n. 10 (1989) (“[R]espondents have chal- lenged the administrative scheme on its face. We deal therefore with whether the [drug] tests contemplated by the regulation can ever be conducted”); cf. (“[] person subject to a statute authorizing searches without a warrant or probable cause may bring an action seeking a declaration that the statute is unconstitutional and an injunction barring its imple- mentation”). Perhaps more importantly, the Court has on numerous occasions declared statutes facially invalid under the Fourth For instance, in Chandler v. Miller, the Court struck down a Georgia statute requiring candidates for certain state offices to take and pass a drug test, concluding that this “requirement [did] not fit within the closely guarded category of constitutionally permissible suspicion- less searches.” Similar examples abound. e.g., Fer- (holding that a hospital policy authorizing “nonconsensual, warrantless, and suspicionless searches” contravened the Fourth ); (1980) (holding that a New York statute “authoriz[ing] police officers to enter a private residence without a war- rant and with force, if necessary, to make a routine felony Cite as: 576 U. S. (2015) 7 Opinion of the Court arrest” was “not consistent with the Fourth ”); (hold- ing that a Puerto Rico statute authorizing “police to search the luggage of any person arriving in Puerto Rico from the United States” was unconstitutional because it failed to require either probable cause or a warrant). B Petitioner principally contends that facial challenges to statutes authorizing warrantless searches must fail be- cause such searches will never be unconstitutional in all applications. Cf. 481 U.S., at (to obtain facial relief the party seeking it “must establish that no set of circumstances exists under which the [statute] would be valid”). In particular, the City points to situa- tions where police are responding to an emergency, where the subject of the search consents to the intrusion, and where police are acting under a court-ordered warrant. Brief for Petitioner 19–20. While petitioner frames this argument as an objection to respondents’ challenge in this case, its logic would preclude facial relief in every Fourth challenge to a statute authorizing warrantless searches. For this reason alone, the City’s argument must fail: The Court’s precedents demonstrate not only that facial challenges to statutes authorizing warrantless searches can be brought, but also that they can succeed. Part II–, Moreover, the City’s argument misunderstands how courts analyze facial challenges. Under the most exacting standard the Court has prescribed for facial challenges, a plaintiff must establish that a “law is unconstitutional in all of its applications.” Washington State But when assessing whether a statute meets this stand- ard, the Court has considered only applications of the 8 LOS NGELES v. PTEL Opinion of the Court statute in which it actually authorizes or prohibits con- duct. For instance, in Planned Parenthood of Southeast- ern the Court struck down a provision of Pennsylvania’s abortion law that required a woman to notify her husband before obtaining an abortion. Those defending the statute argued that facial relief was inappropriate because most women volun- tarily notify their husbands about a planned abortion and for them the law would not impose an undue burden. The Court rejected this argument, explaining: The “[l]egislation is measured for consistency with the Consti- tution by its impact on those whose conduct it affects. The proper focus of the constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.” Similarly, when addressing a facial challenge to a stat- ute authorizing warrantless searches, the proper focus of the constitutional inquiry is searches that the law actually authorizes, not those for which it is irrelevant. If exigency or a warrant justifies an officer’s search, the subject of the search must permit it to proceed irrespective of whether it is authorized by statute. Statutes authorizing warrantless searches also do no work where the subject of a search has consented. ccordingly, the constitutional “applications” that petitioner claims prevent facial relief here are irrele- vant to our analysis because they do not involve actual applications of the statute.1 —————— 1 Relatedly, the United States claims that a statute authorizing war- rantless searches may still have independent force if it imposes a penalty for failing to cooperate in a search conducted under a warrant or in an exigency. Brief for United States as micus Curiae 19. This argument gets things backwards. n otherwise facially unconsti- tutional statute cannot be saved from invalidation based solely on the existence of a penalty provision that applies when searches are not actually authorized by the statute. This argument is especially uncon- vincing where, as here, an independent obstruction of justice statute imposes a penalty for “willfully, resist[ing], delay[ing], or obstruct[ing] Cite as: 576 U. S. (2015) 9 Opinion of the Court III Turning to the merits of the particular claim before us, we hold that (3)(a) is facially unconstitutional be- cause it fails to provide hotel operators with an opportu- nity for precompliance review. The Fourth protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” It further provides that “no Warrants shall issue, but upon probable cause.” Based on this constitutional text, the Court has repeatedly held that “ ‘searches conducted out- side the judicial process, without prior approval by [a] judge or [a] magistrate [judge], are per se unreasonable subject only to a few specifically established and well- delineated exceptions.’ ” rizona v. Gant, 338 (2009) ). This rule “applies to commercial premises as well as to homes.” Marshall v. Barlow’s, 436 U.S. 307, 312 (1978). Search regimes where no warrant is ever required may be reasonable where “ ‘special needs make the warrant and probable-cause requirement impracticable,’ ” Skinner, (some internal quotation marks omitted)), and where the “primary purpose” of the searches is “[d]istinguishable from the general interest in crime con- trol,” Here, we assume that the searches authorized by serve a “special need” other than conducting criminal investigations: They ensure compliance with the record- —————— any public officer in the discharge or attempt to discharge any duty of his or her office of employment.” Cal. Penal Code nn. (West 2014). 10 LOS NGELES v. PTEL Opinion of the Court keeping requirement, which in turn deters criminals from operating on the hotels’ premises.2 The Court has referred to this kind of search as an “administrative searc[h].” Thus, we consider whether falls within the administrative search exception to the warrant requirement. The Court has held that absent consent, exigent circum- stances, or the like, in order for an administrative search to be constitutional, the subject of the search must be afforded an opportunity to obtain precompliance review before a neutral decisionmaker. ; Lone (noting that an administra- tive search may proceed with only a subpoena where the subpoenaed party is sufficiently protected by the oppor- tunity to “question the reasonableness of the subpoena, before suffering any penalties for refusing to comply with it, by raising objections in an action in district court”). nd, we see no reason why this minimal requirement is inapplicable here. While the Court has never attempted to prescribe the exact form an opportunity for precompliance review must take, the City does not even attempt to argue that (3)(a) affords hotel operators any opportunity whatsoever. Section 41.49(3)(a) is, therefore, facially invalid. hotel owner who refuses to give an officer access to his or her registry can be arrested on the spot. The Court has held that business owners cannot reasonably be put to this kind of choice. (holding that “broad statutory safeguards are no substitute for individ- ualized review, particularly when those safeguards may —————— 2 Respondents contend that ’s principal purpose instead is to facilitate criminal investigation. Brief for Respondents –47. Because we find that the searches authorized by are unconstitutional even if they serve the City’s asserted purpose, we decline to address this argument. Cite as: 576 U. S. (2015) 11 Opinion of the Court only be invoked at the risk of a criminal penalty”). bsent an opportunity for precompliance review, the ordinance creates an intolerable risk that searches authorized by it will exceed statutory limits, or be used as a pretext to harass hotel operators and their guests. Even if a hotel has been searched 10 times a day, every day, for three months, without any violation being found, the operator can only refuse to comply with an officer’s demand to turn over the registry at his or her own peril. To be clear, we hold only that a hotel owner must be afforded an opportunity to have a neutral decisionmaker review an officer’s demand to search the registry before he or she faces penalties for failing to comply. ctual review need only occur in those rare instances where a hotel operator objects to turning over the registry. Moreover, this opportunity can be provided without imposing oner- ous burdens on those charged with an administrative scheme’s enforcement. For instance, respondents accept that the searches authorized by (3)(a) would be constitutional if they were performed pursuant to an administrative subpoena. Tr. of Oral rg. 36–37. These subpoenas, which are typically a simple form, can be issued by the individual seeking the record—here, officers in the field—without probable cause that a regulation is being infringed. 387 U.S., at 5 (“[T]he demand to inspect may be issued by the agency”). Issuing a sub- poena will usually be the full extent of an officer’s burden because “the great majority of businessmen can be ex- pected in normal course to consent to inspection without warrant.” Barlow’s, Indeed, the City has cited no evidence suggesting that without an ordinance authorizing on-demand searches, hotel opera- tors would regularly refuse to cooperate with the police. In those instances, however, where a subpoenaed hotel operator believes that an attempted search is motivated by illicit purposes, respondents suggest it would be suffi- 12 LOS NGELES v. PTEL Opinion of the Court cient if he or she could move to quash the subpoena before any search takes place. Tr. of Oral rg. 38–39. neutral decisionmaker, including an administrative law judge, would then review the subpoenaed party’s objections before deciding whether the subpoena is enforceable. Given the limited grounds on which a motion to quash can be granted, such challenges will likely be rare. nd, in the even rarer event that an officer reasonably suspects that a hotel operator may tamper with the registry while the motion to quash is pending, he or she can guard the regis- try until the required hearing can occur, which ought not take long. Riley v. California, 573 U. S. (2014) (slip op., at 12) (police may seize and hold a cell phone “to prevent destruction of evidence while seeking a warrant”); Illinois v. Mcrthur, 6, (citing cases upholding the constitutionality of “temporary re- straints where [they are] needed to preserve evidence until police could obtain a warrant”). Cf. Missouri v. McNeely, 569 U. S. (2013) (slip op., at 12) (noting that many States have procedures in place for considering warrant applications telephonically).3 Procedures along these lines are ubiquitous. 2002 report by the Department of Justice “identified approximately 335 existing administrative subpoena authorities held by various [federal] executive branch entities.” Office of Legal Policy, Report to Congress on the Use of dministrative Subpoena uthorities by Executive Branch gencies and Entities 3, online at http://www.justice.gov/archive/olp/rpt_to_congress.htm (ll Internet materials as visited June 19, 2015, and available in Clerk of Court’s case file). Their prevalence —————— 3 JUSTICE SCLI professes to be baffled at the idea that we could suggest that in certain circumstances, police officers may seize some- thing that they cannot immediately Post, at 10–11 (dissenting opinion). But that is what this Court’s cases have explicitly endorsed, including Riley just last Term. Cite as: 576 U. S. (2015) 13 Opinion of the Court confirms what common sense alone would otherwise lead us to conclude: In most contexts, business owners can be afforded at least an opportunity to contest an administra- tive search’s propriety without unduly compromising the government’s ability to achieve its regulatory aims. Of course administrative subpoenas are only one way in which an opportunity for precompliance review can be made available. But whatever the precise form, the avail- ability of precompliance review alters the dynamic be- tween the officer and the hotel to be searched, and reduces the risk that officers will use these administrative searches as a pretext to harass business owners. Finally, we underscore the narrow nature of our hold- ing. Respondents have not challenged and nothing in our opinion calls into question those parts of that re- quire hotel operators to maintain guest registries contain- ing certain information. nd, even absent legislative action to create a procedure along the lines discussed above, see police will not be prevented from obtaining access to these documents. s they often do, hotel operators remain free to consent to searches of their registries and police can compel them to turn them over if they have a proper administrative warrant—including one that was issued ex parte—or if some other exception to the warrant requirement applies, including exigent circumstances.4 B Rather than arguing that (3)(a) is constitutional —————— 4 In suggesting that our holding today will somehow impede law en- forcement from achieving its important aims, JUSTICE SCLI relies on instances where hotels were used as “prisons for migrants smuggled across the border and held for ransom” or as “rendezvous sites where child sex workers meet their clients on threat of violence from their procurers.” post, at 2. It is hard to imagine circumstances more exigent than these. 14 LOS NGELES v. PTEL Opinion of the Court under the general administrative search doctrine, the City and JUSTICE SCLI contend that hotels are “closely regu- lated,” and that the ordinance is facially valid under the more relaxed standard that applies to searches of this category of businesses. Brief for Petitioner 28–47; post, at 5. They are wrong on both counts. Over the past 45 years, the Court has identified only four industries that “have such a history of government oversight that no reasonable expectation of privacy could exist for a proprietor over the stock of such an en- terprise,” Barlow’s, Simply listing these industries refutes petitioner’s argument that hotels should be counted among them. Unlike liquor sales, Col- onnade Catering (1970), firearms dealing, United States v. Biswell, 406 U.S. 311, 311–312 (1972), mining, Donovan v. Dewey, 452 U.S. 594 (1981), or running an automobile junkyard, New nothing inherent in the operation of hotels poses a clear and significant risk to the public welfare. e.g., (“utomobile junkyards and vehicle dismantlers provide the major market for stolen vehicles and vehicle parts”); Dewey, 452 U.S., 2 (describing the mining industry as “among the most hazardous in the country”).5 Moreover, “[t]he clear import of our cases is that the closely regulated industry is the exception.” Barlow’s, To classify hotels as pervasively regulated would permit what has always been a narrow exception to swallow the rule. The City wisely refrains from arguing that itself renders hotels closely regulated. Nor do any of the other regulations on which —————— 5 JUSTICE SCLI’s effort to depict hotels as raising a comparable de- gree of risk rings hollow. post, at 1, 14. Hotels—like practically all commercial premises or services—can be put to use for nefarious ends. But unlike the industries that the Court has found to be closely regu- lated, hotels are not intrinsically dangerous. Cite as: 576 U. S. (2015) 15 Opinion of the Court petitioner and JUSTICE SCLI rely—regulations requiring hotels to, inter alia, maintain a license, collect taxes, conspicuously post their rates, and meet certain sanitary standards—establish a comprehensive scheme of regula- tion that distinguishes hotels from numerous other busi- nesses. Brief for Petitioner 33–34 (citing regulations); post, at 7 (same). ll businesses in Los ngeles need a license to operate. LMC 21.09(a). While some regulations apply to a smaller set of businesses, see e.g. Cal. Code Regs., tit. 25, (2015) (requiring linens to be changed between rental guests), online at http://www.oal.ca.gov/ccr.htm, these can hardly be said to have created a “ ‘comprehensive’ ” scheme that puts hotel owners on notice that their “ ‘property will be subject to periodic inspections undertaken for specific purposes,’ ” n. 16 (quoting Dewey, 452 U.S., 0). Instead, they are more akin to the widely appli- cable minimum wage and maximum hour rules that the Court rejected as a basis for deeming “the entirety of merican interstate commerce” to be closely regulated in Barlow’s, If such general regula- tions were sufficient to invoke the closely regulated indus- try exception, it would be hard to imagine a type of busi- ness that would not qualify. Brief for Google as micus Curiae 16–17; Brief for the Chamber of Commerce of United States of merica as micus Curiae 12–13. Petitioner attempts to recast this hodgepodge of reg- ulations as a comprehensive scheme by referring to a “centuries-old tradition” of warrantless searches of hotels. Brief for Petitioner 34–36. History is relevant when deter- mining whether an industry is closely regulated. e.g., The historical record here, however, is not as clear as petitioner suggests. The City and JUSTICE SCLI principally point to evidence that hotels were treated as public accommodations. Brief for Petitioner 34–36; post, at 5–6, and n. 1. For instance, the 16 LOS NGELES v. PTEL Opinion of the Court Commonwealth of Massachusetts required innkeepers to “ ‘furnish[ ] suitable provisions and lodging, for the refreshment and entertainment of strangers and travel- lers, pasturing and stable room, hay and provender for their horses and cattle.’ ” Brief for Petitioner 35 (quoting n ct For The Due Regulation Of Licensed Houses (17), reprinted in cts and Laws of the Commonwealth of Massachusetts 209 (1893)). But laws obligating inns to provide suitable lodging to all paying guests are not the same as laws subjecting inns to warrantless searches. Petitioner also asserts that “[f]or a long time, [hotel] own- ers left their registers open to widespread inspection.” Brief for Petitioner 51. Setting aside that modern hotel registries contain sensitive information, such as driver’s licenses and credit card numbers for which there is no historic analog, the fact that some hotels chose to make registries accessible to the public has little bearing on whether government authorities could have viewed these documents on demand without a hotel’s consent. Even if we were to find that hotels are pervasively regulated, would need to satisfy three additional criteria to be reasonable under the Fourth : (1) “[T]here must be a ‘substantial’ government interest that informs the regulatory scheme pursuant to which the inspection is made”; (2) “the warrantless inspections must be ‘necessary’ to further [the] regulatory scheme”; and (3) “the statute’s inspection program, in terms of the certainty and regularity of its application, [must] provid[e] a consti- tutionally adequate substitute for a warrant.” 482 U.S., at 702–703 (internal quotation marks omitted). We assume petitioner’s interest in ensuring that hotels main- tain accurate and complete registries might fulfill the first of these requirements, but conclude that fails the second and third prongs of this test. The City claims that affording hotel operators any op- portunity for precompliance review would fatally under- Cite as: 576 U. S. (2015) 17 Opinion of the Court mine the scheme’s efficacy by giving operators a chance to falsify their records. Brief for Petitioner 41–42. The Court has previously rejected this exact argument, which could be made regarding any recordkeeping requirement. Barlow’s, (“[It is not] apparent why the advantages of surprise would be lost if, after being refused entry, procedures were available for the [Labor] Secretary to seek an ex parte warrant to reappear at the premises without further notice to the establish- ment being inspected”); cf. Lone 415 (affirming use of administrative subpoena which provided an opportunity for precompliance review as a means for obtaining “payroll and sales records”). We see no reason to accept it here. s explained above, nothing in our decision today pre- cludes an officer from conducting a surprise inspection by obtaining an ex parte warrant or, where an officer reason- ably suspects the registry would be altered, from guarding the registry pending a hearing on a motion to quash. Barlow’s, –321; Riley, 573 U. S., at (slip op., at 12). JUSTICE SCLI’s claim that these procedures will prove unworkable given the large number of hotels in Los ngeles is a red herring. post, While there are approximately 2,000 hotels in Los nge- les, ib there is no basis to believe that resort to such measures will be needed to conduct spot checks in the vast majority of them. Section 41.49 is also constitutionally deficient under the “certainty and regularity” prong of the closely regulated industries test because it fails sufficiently to constrain police officers’ discretion as to which hotels to search and under what circumstances. While the Court has upheld inspection schemes of closely regulated industries that called for searches at least four times a year, Dewey, 452 U.S., 4, or on a “regular basis,” 482 U.S., at 711, imposes no comparable standard. 18 LOS NGELES v. PTEL Opinion of the Court * * * For the foregoing reasons, we agree with the Ninth Circuit that (3)(a) is facially invalid insofar as it fails to provide any opportunity for precompliance review before a hotel must give its guest registry to the police for inspection. ccordingly, the judgment of the Ninth Circuit is affirmed. It is so ordered. Cite as: 576 U. S. (2015) 1 SCLI, J., dissenting SUPREME COURT OF THE UNITED STTES No. 13–1175 CITY OF LOS NGELES, CLIFORNI, PETITIONER v. NRNJIBHI PTEL, ET L.

Justice Scalia

dissenting

Los Angeles v. Patel

2015-06-22

https://www.courtlistener.com/opinion/2810524/los-angeles-v-patel/

https://www.courtlistener.com/api/rest/v3/clusters/2810524/

The city of Los Angeles, like many jurisdictions across the country, has a law that requires motels, hotels, and other places of overnight accommodation (hereinafter motels) to keep a register containing specified information about their guests. Los Angeles Municipal Code (LAMC) §41.49(2) (2015). The purpose of this recordkeeping re- quirement is to deter criminal conduct, on the theory that criminals will be unwilling to carry on illicit activities in motel rooms if they must provide identifying information at check-in. Because this deterrent effect will only be accomplished if motels actually do require guests to pro- vide the required information, the ordinance also author- izes police to conduct random spot checks of motels’ guest registers to ensure that they are properly maintained. §41.49(3). The ordinance limits these spot checks to the four corners of the register, and does not authorize police to enter any nonpublic area of the motel. To the extent possible, police must conduct these spot checks at times that will minimize any disruption to a motel’s business. The parties do not dispute the governmental interests at stake. Motels not only provide housing to vulnerable transient populations, they are also a particularly attrac- tive site for criminal activity ranging from drug dealing 2 LOS ANGELES v. PATEL SCALIA, J., dissenting and prostitution to human trafficking. Offering privacy and anonymity on the cheap, they have been employed as prisons for migrants smuggled across the border and held for ransom, see Sanchez, Immigrant Smugglers Be- come More Ruthless, Washington Post, June 28, 2004, p. A3; Wagner, Human Smuggling, Arizona Republic, July 23, 2006, p. A1, and rendezvous sites where child sex workers meet their clients on threat of violence from their procurers. Nevertheless, the Court today concludes that Los Ange- les’s ordinance is “unreasonable” inasmuch as it permits police to flip through a guest register to ensure it is being filled out without first providing an opportunity for the motel operator to seek judicial review. Because I believe that such a limited inspection of a guest register is emi- nently reasonable under the circumstances presented, I dissent. I I assume that respondents may bring a facial challenge to the City’s ordinance under the Fourth Amendment. Even so, their claim must fail because, as discussed infra, the law is constitutional in most, if not all, of its applica- tions. See United States v. Salerno, 481 U.S. 739, 751 (1987). But because the Court discusses the propriety of a facial challenge at some length, I offer a few thoughts. Article III limits our jurisdiction to “Cases” and “Con- troversies.” Accordingly, “[f]ederal courts may not ‘decide questions that cannot affect the rights of litigants in the case before them’ or give ‘opinion[s] advising what the law would be upon a hypothetical state of facts.’ ” Chafin v. Chafin, 568 U. S. ___, ___ (2013) (slip op., at 5). To be sure, the reasoning of a decision may suggest that there is no permissible application of a particular statute, Chicago v. Morales, 527 U.S. 41, 77 (1999) (SCALIA, J., dissenting), and under the doctrine of stare decisis, this reasoning—to Cite as: 576 U. S. ____ (2015) 3 SCALIA, J., dissenting the extent that it is necessary to the holding—will be binding in all future cases. But in this sense, the facial invalidation of a statute is a logical consequence of the Court’s opinion, not the immediate effect of its judgment. Although we have at times described our holdings as invalidating a law, it is always the application of a law, rather than the law itself, that is before us. The upshot is that the effect of a given case is a function not of the plaintiff ’s characterization of his challenge, but the narrowness or breadth of the ground that the Court relies upon in disposing of it. If a plaintiff elects not to present any case-specific facts in support of a claim that a law is unconstitutional—as is the case here—he will limit the grounds on which a Court may find for him to highly abstract rules that would have broad application in future cases. The decision to do this might be a poor strategic move, especially in a Fourth Amendment case, where the reasonableness of a search is a highly factbound question and general, abstract rules are hard to come by. Cf. Sibron v. New York, 392 U.S. 40, 59 (1968). But even had the plaintiffs in this case presented voluminous facts in a self-styled as-applied challenge, nothing would force this Court to rely upon those facts rather than the broader principle that the Court has chosen to rely upon. I see no reason why a plaintiff ’s self-description of his challenge as facial would provide an independent reason to reject it unless we were to delegate to litigants our duty to say what the law is. II The Fourth Amendment provides, in relevant part, 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, and no Warrants shall issue, but upon probable cause.” Grammatically, the two clauses of the Amendment seem to be independent—and 4 LOS ANGELES v. PATEL SCALIA, J., dissenting directed at entirely different actors. The former tells the executive what it must do when it conducts a search, and the latter tells the judiciary what it must do when it issues a search warrant. But in an effort to guide courts in ap- plying the Search-and-Seizure Clause’s indeterminate reasonableness standard, and to maintain coherence in our case law, we have used the Warrant Clause as a guidepost for assessing the reasonableness of a search, and have erected a framework of presumptions applicable to broad categories of searches conducted by executive officials. Our case law has repeatedly recognized, how- ever, that these are mere presumptions, and the only consti- tutional requirement is that a search be reasonable. When, for example, a search is conducted to enforce an administrative regime rather than to investigate criminal wrongdoing, we have been willing to modify the probable- cause standard so that a warrant may issue absent indi- vidualized suspicion of wrongdoing. Thus, our cases say a warrant may issue to inspect a structure for fire-code violations on the basis of such factors as the passage of time, the nature of the building, and the condition of the neighborhood. Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 538–539 (1967). As we recognized in that case, “reasonableness is still the ultimate standard. If a valid public interest justifies the intrusion contemplated, then there is probable cause to issue a suitably restricted search warrant.” Id., at 539. And precisely “because the ultimate touchstone of the Fourth Amendment is ‘reasonableness,’ ” even the pre- sumption that the search of a home without a warrant is unreasonable “is subject to certain exceptions.” Brigham City v. Stuart, 547 U.S. 398, 403 (2006). One exception to normal warrant requirements applies to searches of closely regulated businesses. “[W]hen an entrepreneur embarks upon such a business, he has vol- untarily chosen to subject himself to a full arsenal of Cite as: 576 U. S. ____ (2015) 5 SCALIA, J., dissenting governmental regulation,” and so a warrantless search to enforce those regulations is not unreasonable. Marshall v. Barlow’s, Inc., 436 U.S. 307, 313 (1978). Recognizing that warrantless searches of closely regulated businesses may nevertheless become unreasonable if arbitrarily conducted, we have required laws authorizing such searches to satisfy three criteria: (1) There must be a “ ‘substantial’ govern- ment interest that informs the regulatory scheme pursu- ant to which the inspection is made”; (2) “the warrantless inspections must be ‘necessary to further [the] regulatory scheme’ ”; and (3) “ ‘the statute’s inspection program, in terms of the certainty and regularity of its application, [must] provid[e] a constitutionally adequate substitute for a warrant.’ ” New York v. Burger, 482 U.S. 691, 702–703 (1987). Los Angeles’s ordinance easily meets these standards. A In determining whether a business is closely regulated, this Court has looked to factors including the duration of the regulatory tradition, id., at 705–707, Colonnade Cater- ing Corp. v. United States, 397 U.S. 72, 75–77 (1970), Donovan v. Dewey, 452 U.S. 594, 606 (1981); the compre- hensiveness of the regulatory regime, Burger, supra, at 704–705, Dewey, supra, at 606; and the imposition of similar regulations by other jurisdictions, Burger, supra, at 705. These factors are not talismans, but shed light on the expectation of privacy the owner of a business may reasonably have, which in turn affects the reasonableness of a warrantless search. See Barlow’s, supra, at 313. Reflecting the unique public role of motels and their commercial forebears, governments have long subjected these businesses to unique public duties, and have estab- lished inspection regimes to ensure compliance. As Black- stone observed, “Inns, in particular, being intended for the lodging and receipt of travellers, may be indicted, sup- 6 LOS ANGELES v. PATEL SCALIA, J., dissenting pressed, and the inn-keepers fined, if they refuse to enter- tain a traveller without a very sufficient cause: for thus to frustrate the end of their institution is held to be disorderly behavior.” 4 W. Blackstone, Commentaries on the Laws of England 168 (1765). Justice Story similarly recognized “[t]he soundness of the public policy of subjecting particu- lar classes of persons to extraordinary responsibility, in cases where an extraordinary confidence is necessarily reposed in them, and there is an extraordinary temptation to fraud, or danger of plunder.” J. Story, Commentaries on the Law of Bailments §464, pp. 487–488 (5th ed. 1851). Accordingly, in addition to the obligation to receive any paying guest, “innkeepers are bound to take, not merely ordinary care, but uncommon care, of the goods, money, and baggage of their guests,” id., §470, at 495, as travel- lers “are obliged to rely almost implicitly on the good faith of innholders, whose education and morals are none of the best, and who might have frequent opportunities of asso- ciating with ruffians and pilferers,” id., §471, at 498. These obligations were not merely aspirational. At the time of the founding, searches—indeed, warrantless searches—of inns and similar places of public accommoda- tion were commonplace. For example, although Massa- chusetts was perhaps the State most protective against government searches, “the state code of 1788 still allowed tithingmen to search public houses of entertainment on every Sabbath without any sort of warrant.” W. Cuddihy, Fourth Amendment: Origins and Original Meaning 602– 1791, 743 (2009).1 As this evidence demonstrates, the regulatory tradition governing motels is not only longstanding, but comprehen- —————— 1 As Beale helpfully confirms, “[f ]rom the earliest times the funda- mental characteristic of an inn has been its public nature. It is a public house, a house of public entertainment, or, as it is legally phrased, a common inn.” J. Beale, The Law of Innkeepers and Hotels §11, p. 10 (1906). Cite as: 576 U. S. ____ (2015) 7 SCALIA, J., dissenting sive. And the tradition continues in Los Angeles. The City imposes an occupancy tax upon transients who stay in motels, LAMC §21.7.3, and makes the motel owner responsible for collecting it, §21.7.5. It authorizes city officials “to enter [a motel], free of charge, during business hours” in order to “inspect and examine” them to deter- mine whether these tax provisions have been complied with. §§21.7.9, 21.15. It requires all motels to obtain a “Transient Occupancy Registration Certificate,” which must be displayed on the premises. §21.7.6. State law requires motels to “post in a conspicuous place . . . a statement of rate or range of rates by the day for lodging,” and forbids any charges in excess of those posted rates. Cal. Civ. Code Ann. §1863 (West 2010). Hotels must change bed linens between guests, Cal. Code Regs., tit. 25, §40 (2015), and they must offer guests the option not to have towels and linens laundered daily, LAMC §121.08. “Multiuse drinking utensils” may be placed in guest rooms only if they are “thoroughly washed and sanitized after each use” and “placed in protective bags.” Cal. Code Regs., tit. 17, §30852. And state authorities, like their municipal counterparts, “may at reasonable times enter and inspect any hotels, motels, or other public places” to ensure com- pliance. §30858. The regulatory regime at issue here is thus substan- tially more comprehensive than the regulations governing junkyards in Burger, where licensing, inventory-recording, and permit-posting requirements were found sufficient to qualify the industry as closely regulated. 482 U.S., at 704–705. The Court’s suggestion that these regulations are not sufficiently targeted to motels, and are “akin to . . . minimum wage and maximum hour rules,” ante, at 15, is simply false. The regulations we have described above reach into the “minutest detail[s]” of motel operations, Barlow’s, supra, at 314, and those who enter that business today (like those who have entered it over the centuries) 8 LOS ANGELES v. PATEL SCALIA, J., dissenting do so with an expectation that they will be subjected to especially vigilant governmental oversight. Finally, this ordinance is not an outlier. The City has pointed us to more than 100 similar register-inspection laws in cities and counties across the country, Brief for Petitioner 36, and n. 3, and that is far from exhaustive. In all, municipalities in at least 41 States have laws similar to Los Angeles’s, Brief for National League of Cities et al. as Amici Curiae 16–17, and at least 8 States have their own laws authorizing register inspections, Brief for Cali- fornia et al. as Amici Curiae 12–13. This copious evidence is surely enough to establish that “[w]hen a [motel operator] chooses to engage in this perva- sively regulated business . . . he does so with the knowledge that his business records . . . will be subject to effective inspection.” United States v. Biswell, 406 U.S. 311, 316 (1972). And that is the relevant constitutional test—not whether this regulatory superstructure is “the same as laws subjecting inns to warrantless searches,” or whether, as an historical matter, government authorities not only required these documents to be kept but permit- ted them to be viewed on demand without a motel’s con- sent. Ante, at 16. The Court’s observation that “[o]ver the past 45 years, the Court has identified only four industries” as closely regulated, ante, at 14, is neither here nor there. Since we first concluded in Colonnade Catering that warrantless searches of closely regulated businesses are reasonable, we have only identified one industry as not closely regu- lated, see Barlow’s, 436 U.S., at 313–314. The Court’s statistic thus tells us more about how this Court exercises its discretionary review than it does about the number of industries that qualify as closely regulated. At the same time, lower courts, which do not have the luxury of picking the cases they hear, have identified many more businesses as closely regulated under the test we have announced: Cite as: 576 U. S. ____ (2015) 9 SCALIA, J., dissenting pharmacies, United States v. Gonsalves, 435 F.3d 64, 67 (CA1 2006); massage parlors, Pollard v. Cockrell, 578 F.2d 1002, 1014 (CA5 1978); commercial-fishing opera- tions, United States v. Raub, 637 F.2d 1205, 1208–1209 (CA9 1980); day-care facilities, Rush v. Obledo, 756 F.2d 713, 720–721 (CA9 1985); nursing homes, People v. First- enberg, 92 Cal. App. 3d 570, 578–580, 155 Cal. Rptr. 80, 84–86 (1979); jewelers, People v. Pashigian, 150 Mich. App. 97, 100–101, 388 N.W.2d 259, 261–262 (1986) (per curiam); barbershops, Stogner v. Kentucky, 638 F. Supp. 1, 3 (WD Ky. 1985); and yes, even rabbit dealers, Lesser v. Espy, 34 F.3d 1301, 1306–1307 (CA7 1994). Like auto- mobile junkyards and catering companies that serve alco- hol, many of these businesses are far from “intrinsically dangerous,” cf. ante, at 14, n. 5. This should come as no surprise. The reason closely regulated industries may be searched without a warrant has nothing to do with the risk of harm they pose; rather, it has to do with the expec- tations of those who enter such a line of work. See Bar- low’s, supra, at 313. B The City’s ordinance easily satisfies the remaining Burger requirements: It furthers a substantial govern- mental interest, it is necessary to achieving that interest, and it provides an adequate substitute for a search warrant. Neither respondents nor the Court question the sub- stantial interest of the City in deterring criminal activity. See Brief for Respondents 34–41; ante, at 15. The private pain and public costs imposed by drug dealing, prostitu- tion, and human trafficking are beyond contention, and motels provide an obvious haven for those who trade in human misery. Warrantless inspections are also necessary to advance this interest. Although the Court acknowledges that law 10 LOS ANGELES v. PATEL SCALIA, J., dissenting enforcement can enter a motel room without a warrant when exigent circumstances exist, see ante, at 13, n. 4, the whole reason criminals use motel rooms in the first place is that they offer privacy and secrecy, so that police will never come to discover these exigencies. The recordkeep- ing requirement, which all parties admit is permissible, therefore operates by deterring crime. Criminals, who depend on the anonymity that motels offer, will balk when confronted with a motel’s demand that they produce iden- tification. And a motel’s evasion of the recordkeeping requirement fosters crime. In San Diego, for example, motel owners were indicted for collaborating with mem- bers of the Crips street gang in the prostitution of under- age girls; the motel owners “set aside rooms apart from the rest of their legitimate customers where girls and women were housed, charged the gang members/pimps a higher rate for the rooms where ‘dates’ or ‘tricks’ took place, and warned the gang members of inquiries by law enforcement.” Office of the Attorney General, Cal. Dept. of Justice, The State of Human Trafficking in California 25 (2012). The warrantless inspection requirement provides a necessary incentive for motels to maintain their regis- ters thoroughly and accurately: They never know when law enforcement might drop by to inspect. Respondents and the Court acknowledge that inspec- tions are necessary to achieve the purposes of the record- keeping regime, but insist that warrantless inspections are not. They have to acknowledge, however, that the motel operators who conspire with drug dealers and procurers may demand precompliance judicial review simply as a pretext to buy time for making fraudulent entries in their guest registers. The Court therefore must resort to argu- ing that warrantless inspections are not “necessary” be- cause other alternatives exist. The Court suggests that police could obtain an adminis- trative subpoena to search a guest register and, if a motel Cite as: 576 U. S. ____ (2015) 11 SCALIA, J., dissenting moves to quash, the police could “guar[d] the registry pending a hearing” on the motion. Ante, at 17. This pro- posal is equal parts 1984 and Alice in Wonderland. It protects motels from government inspection of their regis- ters by authorizing government agents to seize the regis- ters2 (if “guarding” entails forbidding the register to be moved) or to upset guests by a prolonged police presence at the motel. The Court also notes that police can obtain an ex parte warrant before conducting a register inspec- tion. Ante, at 17. Presumably such warrants could issue without probable cause of wrongdoing by a particular motel, see Camara, 387 U.S., at 535–536; otherwise, this would be no alternative at all. Even so, under this regime police would have to obtain an ex parte warrant before every inspection. That is because law enforcement would have no way of knowing ahead of time which motels would refuse consent to a search upon request; and if they wait to obtain a warrant until consent is refused, motels will have the opportunity to falsify their guest registers while the police jump through the procedural hoops required to obtain a warrant. It is quite plausible that the costs of this always-get-a-warrant “alternative” would be prohibi- tive for a police force in one of America’s largest cities, juggling numerous law-enforcement priorities, and con- fronting more than 2,000 motels within its jurisdiction. E. Wallace, K. Pollock, B. Horth, S. Carty, & N. El- yas, Los Angeles Tourism: A Domestic and Interna- tional Analysis 7 (May 2014 online at http: //www.lachamber.com/clientuploads/Global_Programs/ WTW/2014/LATourism_LMU_May2014.pdf (as visited June 19, 2015, and available in Clerk of Court’s —————— 2 We are not at all “baffled at the idea that . . . police officers may seize something that they cannot immediately search.” Ante, at 12, n. 3. We are baffled at the idea that anyone would think a seizure of required records less intrusive than a visual inspection. 12 LOS ANGELES v. PATEL SCALIA, J., dissenting case file). To be sure, the fact that obtaining a warrant might be costly will not by itself render a warrantless search reasonable under the Fourth Amendment; but it can render a warrantless search necessary in the context of an administrative-search regime governing closely regulated businesses. But all that discussion is in any case irrelevant. The administrative search need only be reasonable. It is not the burden of Los Angeles to show that there are no less restrictive means of achieving the City’s purposes. Se- questration or ex parte warrants were possible alternatives to the warrantless search regimes approved by this Court in Colonnade Catering, Biswell, Dewey, and Burger. By importing a least-restrictive-means test into Burger’s Fourth Amendment framework, today’s opinion implicitly overrules that entire line of cases. Finally, the City’s ordinance provides an adequate substitute for a warrant. Warrants “advise the owner of the scope and objects of the search, beyond which limits the inspector is not expected to proceed.” Barlow’s, 436 U.S., at 323. Ultimately, they aim to protect against “devolv[ing] almost unbridled discretion upon executive and administrative officers, particularly those in the field, as to when to search and whom to search.” Ibid. Los Angeles’s ordinance provides that the guest register must be kept in the guest reception or guest check-in area, or in an adjacent office, and that it “be made available to any officer of the Los Angeles Police Department for in- spection. Whenever possible, the inspection shall be con- ducted at a time and in a manner that minimizes any interference with the operation of the business.” LAMC §41.49(3). Nothing in the ordinance authorizes law en- forcement to enter a nonpublic part of the motel. Compare this to the statute upheld in Colonnade Catering, which provided that “ ‘[t]he Secretary or his delegate may enter, in the daytime, any building or place where any articles or Cite as: 576 U. S. ____ (2015) 13 SCALIA, J., dissenting objects subject to tax are made, produced, or kept, so far as it may be necessary for the purpose of examining said articles or objects,’ ” 397 U.S., at 73, n. 2 (quoting 26 U.S. C. §7606(a) (1964 ed.)); or the one in Biswell, which stated that “ ‘[t]he Secretary may enter during business hours the premises (including places of storage) of any firearms or ammunition importer . . . for the purpose of inspecting or examining (1) any records or documents required to be kept . . . , and (2) any firearms or ammuni- tion kept or stored,’ ” 406 U.S., at 312, n. 1 (quoting 18 U.S. C. §923(g) (1970 ed.)); or the one in Dewey, which granted federal mine inspectors “ ‘a right of entry to, upon, or through any coal or other mine,’ ” 452 U.S., at 596 (quoting 30 U.S. C. §813(a) (1976 ed., Supp. III)); or the one in Burger, which compelled junkyard operators to “ ‘produce such records and permit said agent or police officer to examine them and any vehicles or parts of vehi- cles which are subject to the record keeping requirements of this section and which are on the premises,’ ” 482 U.S., at 694, n. 1 (quoting N. Y. Veh. & Traf. Law §415–a5 (McKinney 1986)). The Los Angeles ordinance—which limits warrantless police searches to the pages of a guest register in a public part of a motel—circumscribes police discretion in much more exacting terms than the laws we have approved in our earlier cases. The Court claims that Los Angeles’s ordinance confers too much discretion because it does not adequately limit the frequency of searches. Without a trace of irony, the Court tries to distinguish Los Angeles’s law from the laws upheld in Dewey and Burger by pointing out that the latter regimes required inspections at least four times a year and on a “ ‘regular basis,’ ” respectively. Ante, at 17. But the warrantless police searches of a business “10 times a day, every day, for three months” that the Court envisions under Los Angeles’s regime, ante, at 11, are entirely consistent with the regimes in Dewey and Burger; 14 LOS ANGELES v. PATEL SCALIA, J., dissenting 10 times a day, every day, is “at least four times a year,” and on a (much too) “ ‘regular basis.’ ” Ante, at 17. That is not to say that the Court’s hypothetical searches are necessarily constitutional. It is only to say that Los Angeles’s ordinance presents no greater risk that such a hypothetical will materialize than the laws we have al- ready upheld. As in our earlier cases, we should leave it to lower courts to consider on a case-by-case basis whether warrantless searches have been conducted in an unrea- sonably intrusive or harassing manner. III The Court reaches its wrongheaded conclusion not simply by misapplying our precedent, but by mistaking our precedent for the Fourth Amendment itself. Rather than bother with the text of that Amendment, the Court relies exclusively on our administrative-search cases, Camara, See v. Seattle, 387 U.S. 541 (1967), and Barlow’s. But the Constitution predates 1967, and it remains the supreme law of the land today. Although the categorical framework our jurisprudence has erected in this area may provide us guidance, it is guidance to answer the constitu- tional question at issue: whether the challenged search is reasonable. An administrative, warrantless-search ordinance that narrowly limits the scope of searches to a single business record, that does not authorize entry upon premises not open to the public, and that is supported by the need to prevent fabrication of guest registers, is, to say the least, far afield from the laws at issue in the cases the Court relies upon. The Court concludes that such minor intru- sions, permissible when the police are trying to tamp down the market in stolen auto parts, are “unreasonable” when police are instead attempting to stamp out the market in child sex slaves. Because I believe that the limited warrantless searches Cite as: 576 U. S. ____ (2015) 15 SCALIA, J., dissenting authorized by Los Angeles’s ordinance are reasonable under the circumstances, I respectfully dissent. Cite as: 576 U. S. ____ (2015) 1 ALITO, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 13–1175 _________________ CITY OF LOS ANGELES, CALIFORNIA, PETITIONER v. NARANJIBHAI PATEL, ET AL.

The city of Lo Angele, like many juridiction acro the country, ha a law that require motel, hotel, and other place of overnight accommodation (hereinafter motel) to keep a regiter containing pecified information about their guet. Lo Angele Municipal Code (LAMC) (2015). The purpoe of thi recordkeeping re- quirement i to deter criminal conduct, on the theory that criminal will be unwilling to carry on illicit activitie in motel room if they mut provide identifying information at check-in. Becaue thi deterrent effect will only be accomplihed if motel actually do require guet to pro- vide the required information, the ordinance alo author- ize police to conduct random pot check of motel’ guet regiter to enure that they are properly maintained. The ordinance limit thee pot check to the four corner of the regiter, and doe not authorize police to enter any nonpublic area of the motel. To the extent poible, police mut conduct thee pot check at time that will minimize any diruption to a motel’ buine. The partie do not dipute the governmental interet at take. Motel not only provide houing to vulnerable tranient population, they are alo a particularly attrac- tive ite for criminal activity ranging from drug dealing 2 LOS ANGELES v. PATEL SCALIA, J., dienting and protitution to human trafficking. Offering privacy and anonymity on the cheap, they have been employed a prion for migrant muggled acro the border and held for ranom, ee Sanchez, Immigrant Smuggler Be- come More Ruthle, Wahington Pot, June 28, 2004, p. A3; Wagner, Human Smuggling, Arizona Republic, July 23, 2006, p. A1, and rendezvou ite where child ex worker meet their client on threat of violence from their procurer. Neverthele, the Court today conclude that Lo Ange- le’ ordinance i “unreaonable” inamuch a it permit police to flip through a guet regiter to enure it i being filled out without firt providing an opportunity for the motel operator to eek judicial review. Becaue I believe that uch a limited inpection of a guet regiter i emi- nently reaonable under the circumtance preented, I dient. I I aume that repondent may bring a facial challenge to the City’ ordinance under the Fourth Amendment. Even o, their claim mut fail becaue, a dicued infra, the law i contitutional in mot, if not all, of it applica- tion. See United (1987). But becaue the Court dicue the propriety of a facial challenge at ome length, I offer a few thought. Article III limit our juridiction to “Cae” and “Con- troverie.” Accordingly, “[f]ederal court may not ‘decide quetion that cannot affect the right of litigant in the cae before them’ or give ‘opinion[] adviing what the law would be upon a hypothetical tate of fact.’ ” Chafin v. Chafin, 568 U. S. (2013) (lip op., at 5). To be ure, the reaoning of a deciion may ugget that there i no permiible application of a particular tatute, Chicago v. Morale, and under the doctrine of tare decii, thi reaoning—to Cite a: 576 U. S. (2015) 3 SCALIA, J., dienting the extent that it i neceary to the holding—will be binding in all future cae. But in thi ene, the facial invalidation of a tatute i a logical conequence of the Court’ opinion, not the immediate effect of it judgment. Although we have at time decribed our holding a invalidating a law, it i alway the application of a law, rather than the law itelf, that i before u. The uphot i that the effect of a given cae i a function not of the plaintiff ’ characterization of hi challenge, but the narrowne or breadth of the ground that the Court relie upon in dipoing of it. If a plaintiff elect not to preent any cae-pecific fact in upport of a claim that a law i uncontitutional—a i the cae here—he will limit the ground on which a Court may find for him to highly abtract rule that would have broad application in future cae. The deciion to do thi might be a poor trategic move, epecially in a Fourth Amendment cae, where the reaonablene of a earch i a highly factbound quetion and general, abtract rule are hard to come by. Cf. But even had the plaintiff in thi cae preented voluminou fact in a elf-tyled a-applied challenge, nothing would force thi Court to rely upon thoe fact rather than the broader principle that the Court ha choen to rely upon. I ee no reaon why a plaintiff ’ elf-decription of hi challenge a facial would provide an independent reaon to reject it unle we were to delegate to litigant our duty to ay what the law i. II The Fourth Amendment provide, in relevant part, that “[t]he right of the people to be ecure in their peron, houe, paper, and effect, againt unreaonable earche and eizure, hall not be violated, and no Warrant hall iue, but upon probable caue.” Grammatically, the two claue of the Amendment eem to be independent—and 4 LOS ANGELES v. PATEL SCALIA, J., dienting directed at entirely different actor. The former tell the executive what it mut do when it conduct a earch, and the latter tell the judiciary what it mut do when it iue a earch warrant. But in an effort to guide court in ap- plying the Search-and-Seizure Claue’ indeterminate reaonablene tandard, and to maintain coherence in our cae law, we have ued the Warrant Claue a a guidepot for aeing the reaonablene of a earch, and have erected a framework of preumption applicable to broad categorie of earche conducted by executive official. Our cae law ha repeatedly recognized, how- ever, that thee are mere preumption, and the only conti- tutional requirement i that a earch be reaonable. When, for example, a earch i conducted to enforce an adminitrative regime rather than to invetigate criminal wrongdoing, we have been willing to modify the probable- caue tandard o that a warrant may iue abent indi- vidualized upicion of wrongdoing. Thu, our cae ay a warrant may iue to inpect a tructure for fire-code violation on the bai of uch factor a the paage of time, the nature of the building, and the condition of the neighborhood. A we recognized in that cae, “reaonablene i till the ultimate tandard. If a valid public interet jutifie the intruion contemplated, then there i probable caue to iue a uitably retricted earch warrant.” And preciely “becaue the ultimate touchtone of the Fourth Amendment i ‘reaonablene,’ ” even the pre- umption that the earch of a home without a warrant i unreaonable “i ubject to certain exception.” Brigham One exception to normal warrant requirement applie to earche of cloely regulated buinee. “[W]hen an entrepreneur embark upon uch a buine, he ha vol- untarily choen to ubject himelf to a full arenal of Cite a: 576 U. S. (2015) 5 SCALIA, J., dienting governmental regulation,” and o a warrantle earch to enforce thoe regulation i not unreaonable. Marhall v. Barlow’, Inc., Recognizing that warrantle earche of cloely regulated buinee may neverthele become unreaonable if arbitrarily conducted, we have required law authorizing uch earche to atify three criteria: (1) There mut be a “ ‘ubtantial’ govern- ment interet that inform the regulatory cheme puru- ant to which the inpection i made”; (2) “the warrantle inpection mut be ‘neceary to further [the] regulatory cheme’ ”; and (3) “ ‘the tatute’ inpection program, in term of the certainty and regularity of it application, [mut] provid[e] a contitutionally adequate ubtitute for a warrant.’ ” New 702–703 (1987). Lo Angele’ ordinance eaily meet thee tandard. A In determining whether a buine i cloely regulated, thi Court ha looked to factor including the duration of the regulatory tradition, at 705–707, Colonnade Cater- ing 75– 452 U.S. 4, ; the compre- henivene of the regulatory regime, at 704–705, at ; and the impoition of imilar regulation by other juridiction, at 705. Thee factor are not taliman, but hed light on the expectation of privacy the owner of a buine may reaonably have, which in turn affect the reaonablene of a warrantle earch. See Barlow’, at Reflecting the unique public role of motel and their commercial forebear, government have long ubjected thee buinee to unique public dutie, and have etab- lihed inpection regime to enure compliance. A Black- tone oberved, “Inn, in particular, being intended for the lodging and receipt of traveller, may be indicted, up- 6 LOS ANGELES v. PATEL SCALIA, J., dienting preed, and the inn-keeper fined, if they refue to enter- tain a traveller without a very ufficient caue: for thu to frutrate the end of their intitution i held to be diorderly behavior.” 4 W. Blacktone, Commentarie on the Law of England 168 (1765). Jutice Story imilarly recognized “[t]he oundne of the public policy of ubjecting particu- lar clae of peron to extraordinary reponibility, in cae where an extraordinary confidence i necearily repoed in them, and there i an extraordinary temptation to fraud, or danger of plunder.” J. Story, Commentarie on the Law of Bailment pp. 487–488 (5th ed. 1851). Accordingly, in addition to the obligation to receive any paying guet, “innkeeper are bound to take, not merely ordinary care, but uncommon care, of the good, money, and baggage of their guet,” at 495, a travel- ler “are obliged to rely almot implicitly on the good faith of innholder, whoe education and moral are none of the bet, and who might have frequent opportunitie of ao- ciating with ruffian and pilferer,” at 498. Thee obligation were not merely apirational. At the time of the founding, earche—indeed, warrantle earche—of inn and imilar place of public accommoda- tion were commonplace. For example, although Maa- chuett wa perhap the State mot protective againt government earche, “the tate code of 1788 till allowed tithingmen to earch public houe of entertainment on every Sabbath without any ort of warrant.” W. Cuddihy, Fourth Amendment: Origin and Original Meaning 602– 1791, 743 (2009).1 A thi evidence demontrate, the regulatory tradition governing motel i not only longtanding, but comprehen- —————— 1 A Beale helpfully confirm, “[f ]rom the earliet time the funda- mental characteritic of an inn ha been it public nature. It i a public houe, a houe of public entertainment, or, a it i legally phraed, a common inn.” J. Beale, The Law of Innkeeper and Hotel p. 10 (1906). Cite a: 576 U. S. (2015) 7 SCALIA, J., dienting ive. And the tradition continue in Lo Angele. The City impoe an occupancy tax upon tranient who tay in motel, LAMC and make the motel owner reponible for collecting it, It authorize city official “to enter [a motel], free of charge, during buine hour” in order to “inpect and examine” them to deter- mine whether thee tax proviion have been complied with. 21.15. It require all motel to obtain a “Tranient Occupancy Regitration Certificate,” which mut be diplayed on the premie. State law require motel to “pot in a conpicuou place a tatement of rate or range of rate by the day for lodging,” and forbid any charge in exce of thoe poted rate. Cal. Civ. Code Ann. (Wet 2010). Hotel mut change bed linen between guet, Cal. Code Reg., tit. 25, (2015), and they mut offer guet the option not to have towel and linen laundered daily, LAMC “Multiue drinking utenil” may be placed in guet room only if they are “thoroughly wahed and anitized after each ue” and “placed in protective bag.” Cal. Code Reg., tit. 17, And tate authoritie, like their municipal counterpart, “may at reaonable time enter and inpect any hotel, motel, or other public place” to enure com- pliance. The regulatory regime at iue here i thu ubtan- tially more comprehenive than the regulation governing junkyard in where licening, inventory-recording, and permit-poting requirement were found ufficient to qualify the indutry a cloely regulated. 482 U.S., at 704–705. The Court’ uggetion that thee regulation are not ufficiently targeted to motel, and are “akin to minimum wage and maximum hour rule,” ante, at 15, i imply fale. The regulation we have decribed above reach into the “minutet detail[]” of motel operation, Barlow’, and thoe who enter that buine today (like thoe who have entered it over the centurie) 8 LOS ANGELES v. PATEL SCALIA, J., dienting do o with an expectation that they will be ubjected to epecially vigilant governmental overight. Finally, thi ordinance i not an outlier. The City ha pointed u to more than 100 imilar regiter-inpection law in citie and countie acro the country, Brief for Petitioner 36, and n. 3, and that i far from exhautive. In all, municipalitie in at leat 41 State have law imilar to Lo Angele’, Brief for National League of Citie et al. a Amici Curiae 16–17, and at leat 8 State have their own law authorizing regiter inpection, Brief for Cali- fornia et al. a Amici Curiae 12–13. Thi copiou evidence i urely enough to etablih that “[w]hen a [motel operator] chooe to engage in thi perva- ively regulated buine he doe o with the knowledge that hi buine record will be ubject to effective inpection.” United State v. Biwell, 406 U.S. 311, 316 (1972). And that i the relevant contitutional tet—not whether thi regulatory upertructure i “the ame a law ubjecting inn to warrantle earche,” or whether, a an hitorical matter, government authoritie not only required thee document to be kept but permit- ted them to be viewed on demand without a motel’ con- ent. Ante, at 16. The Court’ obervation that “[o]ver the pat 45 year, the Court ha identified only four indutrie” a cloely regulated, ante, at 14, i neither here nor there. Since we firt concluded in Colonnade Catering that warrantle earche of cloely regulated buinee are reaonable, we have only identified one indutry a not cloely regu- lated, ee Barlow’, 436 U.S., at –314. The Court’ tatitic thu tell u more about how thi Court exercie it dicretionary review than it doe about the number of indutrie that qualify a cloely regulated. At the ame time, lower court, which do not have the luxury of picking the cae they hear, have identified many more buinee a cloely regulated under the tet we have announced: Cite a: 576 U. S. (2015) 9 SCALIA, J., dienting pharmacie, United State v. Gonalve, ; maage parlor, Pollard v. Cockrell, 578 F.2d 1002, 1014 ; commercial-fihing opera- tion, United State v. Raub, 1208–1209 (CA9 1980); day-care facilitie, Ruh v. Obledo, 756 F.2d 713, 720–721 (CA9 1985); nuring home, People v. Firt- enberg, 578–580, 84–86 (1979); jeweler, People v. Pahigian, 150 Mich. App. 97, 100–101, 388 N.W.2d 2, (per curiam); barberhop, 3 (WD Ky. 1985); and ye, even rabbit dealer, Leer v. Epy, Like auto- mobile junkyard and catering companie that erve alco- hol, many of thee buinee are far from “intrinically dangerou,” cf. ante, at 14, n. 5. Thi hould come a no urprie. The reaon cloely regulated indutrie may be earched without a warrant ha nothing to do with the rik of harm they poe; rather, it ha to do with the expec- tation of thoe who enter uch a line of work. See Bar- low’, at B The City’ ordinance eaily atifie the remaining requirement: It further a ubtantial govern- mental interet, it i neceary to achieving that interet, and it provide an adequate ubtitute for a earch warrant. Neither repondent nor the Court quetion the ub- tantial interet of the City in deterring criminal activity. See Brief for Repondent 34–41; ante, at 15. The private pain and public cot impoed by drug dealing, protitu- tion, and human trafficking are beyond contention, and motel provide an obviou haven for thoe who trade in human miery. Warrantle inpection are alo neceary to advance thi interet. Although the Court acknowledge that law 10 LOS ANGELES v. PATEL SCALIA, J., dienting enforcement can enter a motel room without a warrant when exigent circumtance exit, ee ante, at 13, n. 4, the whole reaon criminal ue motel room in the firt place i that they offer privacy and ecrecy, o that police will never come to dicover thee exigencie. The recordkeep- ing requirement, which all partie admit i permiible, therefore operate by deterring crime. Criminal, who depend on the anonymity that motel offer, will balk when confronted with a motel’ demand that they produce iden- tification. And a motel’ evaion of the recordkeeping requirement foter crime. In San Diego, for example, motel owner were indicted for collaborating with mem- ber of the Crip treet gang in the protitution of under- age girl; the motel owner “et aide room apart from the ret of their legitimate cutomer where girl and women were houed, charged the gang member/pimp a higher rate for the room where ‘date’ or ‘trick’ took place, and warned the gang member of inquirie by law enforcement.” Office of the Attorney General, Cal. Dept. of Jutice, The State of Human Trafficking in California 25 (2012). The warrantle inpection requirement provide a neceary incentive for motel to maintain their regi- ter thoroughly and accurately: They never know when law enforcement might drop by to inpect. Repondent and the Court acknowledge that inpec- tion are neceary to achieve the purpoe of the record- keeping regime, but init that warrantle inpection are not. They have to acknowledge, however, that the motel operator who conpire with drug dealer and procurer may demand precompliance judicial review imply a a pretext to buy time for making fraudulent entrie in their guet regiter. The Court therefore mut reort to argu- ing that warrantle inpection are not “neceary” be- caue other alternative exit. The Court ugget that police could obtain an admini- trative ubpoena to earch a guet regiter and, if a motel Cite a: 576 U. S. (2015) 11 SCALIA, J., dienting move to quah, the police could “guar[d] the regitry pending a hearing” on the motion. Ante, at 17. Thi pro- poal i equal part 1984 and Alice in Wonderland. It protect motel from government inpection of their regi- ter by authorizing government agent to eize the regi- ter2 (if “guarding” entail forbidding the regiter to be moved) or to upet guet by a prolonged police preence at the motel. The Court alo note that police can obtain an ex parte warrant before conducting a regiter inpec- tion. Ante, at 17. Preumably uch warrant could iue without probable caue of wrongdoing by a particular motel, ee –536; otherwie, thi would be no alternative at all. Even o, under thi regime police would have to obtain an ex parte warrant before every inpection. That i becaue law enforcement would have no way of knowing ahead of time which motel would refue conent to a earch upon requet; and if they wait to obtain a warrant until conent i refued, motel will have the opportunity to falify their guet regiter while the police jump through the procedural hoop required to obtain a warrant. It i quite plauible that the cot of thi alway-get-a-warrant “alternative” would be prohibi- tive for a police force in one of America’ larget citie, juggling numerou law-enforcement prioritie, and con- fronting more than 2,000 motel within it juridiction. E. Wallace, K. Pollock, B. Horth, S. Carty, & N. El- ya, Lo Angele Tourim: A Dometic and Interna- tional Analyi 7 (May 2014 online at http: //www.lachamber.com/clientupload/Global_Program/ WTW/2014/LATourim_LMU_May2014.pdf (a viited June 19, 2015, and available in Clerk of Court’ —————— 2 We are not at all “baffled at the idea that police officer may eize omething that they cannot immediately earch.” Ante, at 12, n. 3. We are baffled at the idea that anyone would think a eizure of required record le intruive than a viual inpection. 12 LOS ANGELES v. PATEL SCALIA, J., dienting cae file). To be ure, the fact that obtaining a warrant might be cotly will not by itelf render a warrantle earch reaonable under the Fourth Amendment; but it can render a warrantle earch neceary in the context of an adminitrative-earch regime governing cloely regulated buinee. But all that dicuion i in any cae irrelevant. The adminitrative earch need only be reaonable. It i not the burden of Lo Angele to how that there are no le retrictive mean of achieving the City’ purpoe. Se- quetration or ex parte warrant were poible alternative to the warrantle earch regime approved by thi Court in Colonnade Catering, Biwell, and By importing a leat-retrictive-mean tet into ’ Fourth Amendment framework, today’ opinion implicitly overrule that entire line of cae. Finally, the City’ ordinance provide an adequate ubtitute for a warrant. Warrant “advie the owner of the cope and object of the earch, beyond which limit the inpector i not expected to proceed.” Barlow’, 436 U.S., at 323. Ultimately, they aim to protect againt “devolv[ing] almot unbridled dicretion upon executive and adminitrative officer, particularly thoe in the field, a to when to earch and whom to earch.” Lo Angele’ ordinance provide that the guet regiter mut be kept in the guet reception or guet check-in area, or in an adjacent office, and that it “be made available to any officer of the Lo Angele Police Department for in- pection. Whenever poible, the inpection hall be con- ducted at a time and in a manner that minimize any interference with the operation of the buine.” LAMC Nothing in the ordinance authorize law en- forcement to enter a nonpublic part of the motel. Compare thi to the tatute upheld in Colonnade Catering, which provided that “ ‘[t]he Secretary or hi delegate may enter, in the daytime, any building or place where any article or Cite a: 576 U. S. (2015) 13 SCALIA, J., dienting object ubject to tax are made, produced, or kept, o far a it may be neceary for the purpoe of examining aid article or object,’ ” n. 2 (quoting 26 U.S. C. §7(a) (1964 ed.)); or the one in Biwell, which tated that “ ‘[t]he Secretary may enter during buine hour the premie (including place of torage) of any firearm or ammunition importer for the purpoe of inpecting or examining (1) any record or document required to be kept and (2) any firearm or ammuni- tion kept or tored,’ ” n. 1 (quoting 18 U.S. C. (1970 ed.)); or the one in which granted federal mine inpector “ ‘a right of entry to, upon, or through any coal or other mine,’ ” 452 U.S., at 6 (quoting 30 U.S. C. (1976 ed., Supp. III)); or the one in which compelled junkyard operator to “ ‘produce uch record and permit aid agent or police officer to examine them and any vehicle or part of vehi- cle which are ubject to the record keeping requirement of thi ection and which are on the premie,’ ” 482 U.S., at 694, n. 1 ). The Lo Angele ordinance—which limit warrantle police earche to the page of a guet regiter in a public part of a motel—circumcribe police dicretion in much more exacting term than the law we have approved in our earlier cae. The Court claim that Lo Angele’ ordinance confer too much dicretion becaue it doe not adequately limit the frequency of earche. Without a trace of irony, the Court trie to ditinguih Lo Angele’ law from the law upheld in and by pointing out that the latter regime required inpection at leat four time a year and on a “ ‘regular bai,’ ” repectively. Ante, at 17. But the warrantle police earche of a buine “10 time a day, every day, for three month” that the Court enviion under Lo Angele’ regime, ante, at 11, are entirely conitent with the regime in and ; 14 LOS ANGELES v. PATEL SCALIA, J., dienting 10 time a day, every day, i “at leat four time a year,” and on a (much too) “ ‘regular bai.’ ” Ante, at 17. That i not to ay that the Court’ hypothetical earche are necearily contitutional. It i only to ay that Lo Angele’ ordinance preent no greater rik that uch a hypothetical will materialize than the law we have al- ready upheld. A in our earlier cae, we hould leave it to lower court to conider on a cae-by-cae bai whether warrantle earche have been conducted in an unrea- onably intruive or haraing manner. III The Court reache it wrongheaded concluion not imply by miapplying our precedent, but by mitaking our precedent for the Fourth Amendment itelf. Rather than bother with the text of that Amendment, the Court relie excluively on our adminitrative-earch cae, See v. Seattle, and Barlow’. But the Contitution predate 19, and it remain the upreme law of the land today. Although the categorical framework our juriprudence ha erected in thi area may provide u guidance, it i guidance to anwer the contitu- tional quetion at iue: whether the challenged earch i reaonable. An adminitrative, warrantle-earch ordinance that narrowly limit the cope of earche to a ingle buine record, that doe not authorize entry upon premie not open to the public, and that i upported by the need to prevent fabrication of guet regiter, i, to ay the leat, far afield from the law at iue in the cae the Court relie upon. The Court conclude that uch minor intru- ion, permiible when the police are trying to tamp down the market in tolen auto part, are “unreaonable” when police are intead attempting to tamp out the market in child ex lave. Becaue I believe that the limited warrantle earche Cite a: 576 U. S. (2015) 15 SCALIA, J., dienting authorized by Lo Angele’ ordinance are reaonable under the circumtance, I repectfully dient. Cite a: 576 U. S. (2015) 1 ALITO, J., dienting SUPREME COURT OF THE UNITED STATES No. 13–1175 CITY OF LOS ANGELES, CALIFORNIA, PETITIONER v. NARANJIBHAI PATEL, ET AL.

Justice Alito

second_dissenting

Los Angeles v. Patel

2015-06-22

https://www.courtlistener.com/opinion/2810524/los-angeles-v-patel/

https://www.courtlistener.com/api/rest/v3/clusters/2810524/

After today, the city of Los Angeles can never, under any circumstances, enforce its 116-year-old requirement that hotels make their registers available to police officers. That is because the Court holds that §41.49(3)(a) of the Los Angeles Municipal Code (2015) is facially unconstitu- tional. Before entering a judgment with such serious safety and federalism implications, the Court must con- clude that every application of this law is unconstitu- tional—i.e., that “ ‘no set of circumstances exists under which the [law] would be valid.’ ” Ante, at 7 (quoting United States v. Salerno, 481 U.S. 739, 745 (1987)). I have doubts about the Court’s approach to administrative searches and closely regulated industries. Ante, at 9–17. But even if the Court were 100% correct, it still should uphold §41.49(3)(a) because many other applications of this law are constitutional. Here are five examples. Example One. The police have probable cause to believe that a register contains evidence of a crime. They go to a judge and get a search warrant. The hotel operator, how- ever, refuses to surrender the register, but instead stashes it away. Officers could tear the hotel apart looking for it. Or they could simply order the operator to produce it. The Fourth Amendment does not create a right to defy a war- 2 LOS ANGELES v. PATEL ALITO, J., dissenting rant. Hence §41.49(3)(a) could be constitutionally applied in this scenario. Indeed, the Court concedes that it is proper to apply a California obstruction of justice law in such a case. See ante, at 8–9, n. 1; Brief for Respondents 49. How could applying a city law with a similar effect be different? No one thinks that overlapping laws are uncon- stitutional. See, e.g., Yates v. United States, 574 U. S. ___, ___ (2015) (KAGAN, J. dissenting) (slip op., at 10–11) (“Overlap—even significant overlap—abounds in criminal law”) (collecting citations). And a specific law gives more notice than a general law. In any event, the Los Angeles ordinance is arguably broader in at least one important respect than the Califor- nia obstruction of justice statute on which the Court relies. Ante, at 8–9, n. 1. The state law applies when a person “willfully resists, delays, or obstructs any public officer . . . in the discharge or attempt to discharge any duty of his or her office.” Cal. Penal Code Ann. §148(a)(1) (West 2014). In the example set out above, suppose that the hotel oper- ator, instead of hiding the register, simply refused to tell the police where it is located. The Court cites no Califor- nia case holding that such a refusal would be unlawful, and the city of Los Angeles submits that under California law, “[o]bstruction statutes prohibit a hotel owner from obstructing a search, but they do not require affirmative assistance.” Reply Brief 5. The Los Angeles ordinance, by contrast, unequivocally requires a hotel operator to make the register available on request. Example Two. A murderer has kidnapped a woman with the intent to rape and kill her and there is reason to believe he is holed up in a certain motel. The Fourth Amendment’s reasonableness standard accounts for exi- gent circumstances. See, e.g., Brigham City v. Stuart, 547 U.S. 398, 403 (2006). When the police arrive, the motel operator folds her arms and says the register is locked in a safe. Invoking §41.49(3)(a), the police order the operator Cite as: 576 U. S. ____ (2015) 3 ALITO, J., dissenting to turn over the register. She refuses. The Fourth Amendment does not protect her from arrest. Example Three. A neighborhood of “pay by the hour” motels is a notorious gathering spot for child-sex traffick- ers. Police officers drive through the neighborhood late one night and see unusual amounts of activity at a partic- ular motel. The officers stop and ask the motel operator for the names of those who paid with cash to rent rooms for less than three hours. The operator refuses to provide the information. Requesting to see the register—and arresting the operator for failing to provide it—would be reasonable under the “totality of the circumstances.” Ohio v. Robinette, 519 U.S. 33, 39 (1996). In fact, the Court has upheld a similar reporting duty against a Fourth Amend- ment challenge where the scope of information required was also targeted and the public’s interest in crime pre- vention was no less serious. See California Bankers Assn. v. Shultz, 416 U.S. 21, 39, n. 15, 66–67 (1974) (having “no difficulty” upholding a requirement that banks must provide reports about transactions involving more than $10,000, including the name, address, occupation, and social security number of the customer involved, along with a summary of the transaction, the amount of money at issue, and the type of identification presented). Example Four. A motel is operated by a dishonest employee. He has been charging more for rooms than he records, all the while pocketing the difference. The owner finds out and eagerly consents to a police inspection of the register. But when officers arrive and ask to see the regis- ter, the operator hides it. The Fourth Amendment does not allow the operator’s refusal to defeat the owner’s consent. See, e.g., Mancusi v. DeForte, 392 U.S. 364, 369– 370 (1968). Accordingly, it would not violate the Fourth Amendment to arrest the operator for failing to make the register “available to any officer of the Los Angeles Police Department for inspection.” §41.49(3)(a). 4 LOS ANGELES v. PATEL ALITO, J., dissenting Example Five. A “mom and pop” motel always keeps its old-fashioned guest register open on the front desk. Any- one who wants to can walk up and leaf through it. (Such motels are not as common as they used to be, but Los Angeles is a big place.) The motel has no reasonable expectation of privacy in the register, and no one doubts that police officers—like anyone else—can enter into the lobby. See, e.g., Florida v. Jardines, 569 U.S. 1, ___ (2013) (slip op., at 6); Donovan v. Lone Steer, Inc., 464 U.S. 408, 413 (1984). But when an officer starts looking at the register, as others do, the motel operator at the desk snatches it away and will not give it back. Arresting that person would not violate the Fourth Amendment. These are just five examples. There are many more. The Court rushes past examples like these by suggesting that §41.49(3)(a) does no “work” in such scenarios. Ante, at 8. That is not true. Under threat of legal sanction, this law orders hotel operators to do things they do not want to do. To be sure, there may be circumstances in which §41.49(3)(a)’s command conflicts with the Fourth Amend- ment, and in those circumstances the Fourth Amendment is supreme. See U. S. Const., Art VI, cl. 2. But no differ- ent from any other local law, the remedy for such circum- stances should be an as-applied injunction limited to the conflict with the Fourth Amendment. Such an injunction would protect a hotel from being “searched 10 times a day, every day, for three months, without any violation being found.” Ante, at 11. But unlike facial invalidation, an as- applied injunction does not produce collateral damage. Section 41.49(3)(a) should be enforceable in those many cases in which the Fourth Amendment is not violated. There are serious arguments that the Fourth Amend- ment’s application to warrantless searches and seizures is inherently inconsistent with facial challenges. See Sibron v. New York, 392 U.S. 40, 59, 62 (1968) (explaining that because of the Fourth Amendment’s reasonableness re- Cite as: 576 U. S. ____ (2015) 5 ALITO, J., dissenting quirement, “[t]he constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case”); Brief for Manhattan Institute for Policy Research as Amicus Curiae 33 (“A constitutional claim under the first clause of the Fourth Amendment is never a ‘facial’ challenge, because it is always and inherently a challenge to executive action”). But assuming such facial challenges ever make sense conceptually, this particular one fails under basic principles of facial invalidation. The Court’s contrary holding is befuddling. I respectfully dissent.

After today, the city of Los Angeles can never, under any circumstances, enforce its 116-year-old requirement that hotels make their registers available to police officers. That is because the Court holds that of the Los Angeles Municipal Code (2015) is facially unconstitu- tional. Before entering a judgment with such serious safety and federalism implications, the Court must con- clude that every application of this law is unconstitu- tional—i.e., that “ ‘no set of circumstances exists under which the [law] would be valid.’ ” Ante, at 7 ). I have doubts about the Court’s approach to administrative searches and closely regulated industries. Ante, at 9–17. But even if the Court were 100% correct, it still should uphold because many other applications of this law are constitutional. Here are five examples. Example One. The police have probable cause to believe that a register contains evidence of a crime. They go to a judge and get a search warrant. The hotel operator, how- ever, refuses to surrender the register, but instead stashes it away. Officers could tear the hotel apart looking for it. Or they could simply order the operator to produce it. The Fourth Amendment does not create a right to defy a war- 2 LOS ANGELES v. PATEL ALITO, J., dissenting rant. Hence could be constitutionally applied in this scenario. Indeed, the Court concedes that it is proper to apply a California obstruction of justice law in such a case. See ante, at 8–9, n. 1; Brief for Respondents 49. How could applying a city law with a similar effect be different? No one thinks that overlapping laws are uncon- stitutional. See, e.g., Yates v. United States, 574 U. S. (2015) (KAGAN, J. dissenting) (slip op., at 10–11) (“Overlap—even significant overlap—abounds in criminal law”) (collecting citations). And a specific law gives more notice than a general law. In any event, the Los Angeles ordinance is arguably broader in at least one important respect than the Califor- nia obstruction of justice statute on which the Court relies. Ante, at 8–9, n. 1. The state law applies when a person “willfully resists, delays, or obstructs any public officer in the discharge or attempt to discharge any duty of his or her office.” Cal. Penal Code Ann. (West 2014). In the example set out above, suppose that the hotel oper- ator, instead of hiding the register, simply refused to tell the police where it is located. The Court cites no Califor- nia case holding that such a refusal would be unlawful, and the city of Los Angeles submits that under California law, “[o]bstruction statutes prohibit a hotel owner from obstructing a search, but they do not require affirmative assistance.” Reply Brief 5. The Los Angeles ordinance, by contrast, unequivocally requires a hotel operator to make the register available on request. Example Two. A murderer has kidnapped a woman with the intent to rape and kill her and there is reason to believe he is holed up in a certain motel. The Fourth Amendment’s reasonableness standard accounts for exi- gent circumstances. See, e.g., Brigham City v. Stuart, 547 U.S. 8, 403 (2006). When the police arrive, the motel operator folds her arms and says the register is locked in a safe. Invoking the police order the operator Cite as: 576 U. S. (2015) 3 ALITO, J., dissenting to turn over the register. She refuses. The Fourth Amendment does not protect her from arrest. Example Three. A neighborhood of “pay by the hour” motels is a notorious gathering spot for child-sex traffick- ers. Police officers drive through the neighborhood late one night and see unusual amounts of activity at a partic- ular motel. The officers stop and ask the motel operator for the names of those who paid with cash to rent rooms for less than three hours. The operator refuses to provide the information. Requesting to see the register—and arresting the operator for failing to provide it—would be reasonable under the “totality of the circumstances.” Ohio v. Robinette, In fact, the Court has upheld a similar reporting duty against a Fourth Amend- ment challenge where the scope of information required was also targeted and the public’s interest in crime pre- vention was no less serious. See California Bankers Assn. v. Shultz, n. 15, (having “no difficulty” upholding a requirement that banks must provide reports about transactions involving more than $10,000, including the name, address, occupation, and social security number of the customer involved, along with a summary of the transaction, the amount of money at issue, and the type of identification presented). Example Four. A motel is operated by a dishonest employee. He has been charging more for rooms than he records, all the while pocketing the difference. The owner finds out and eagerly consents to a police inspection of the register. But when officers arrive and ask to see the regis- ter, the operator hides it. The Fourth Amendment does not allow the operator’s refusal to defeat the owner’s consent. See, e.g., 2 U.S. 364, 369– 370 Accordingly, it would not violate the Fourth Amendment to arrest the operator for failing to make the register “available to any officer of the Los Angeles Police Department for inspection.” 4 LOS ANGELES v. PATEL ALITO, J., dissenting Example Five. A “mom and pop” motel always keeps its old-fashioned guest register open on the front desk. Any- one who wants to can walk up and leaf through it. (Such motels are not as common as they used to be, but Los Angeles is a big place.) The motel has no reasonable expectation of privacy in the register, and no one doubts that police officers—like anyone else—can enter into the lobby. See, e.g., (2013) (slip op., at 6); Donovan v. Lone Steer, Inc., 464 U.S. 408, 413 (1984). But when an officer starts looking at the register, as others do, the motel operator at the desk snatches it away and will not give it back. Arresting that person would not violate the Fourth Amendment. These are just five examples. There are many more. The Court rushes past examples like these by suggesting that does no “work” in such scenarios. Ante, at 8. That is not true. Under threat of legal sanction, this law orders hotel operators to do things they do not want to do. To be sure, there may be circumstances in which ’s command conflicts with the Fourth Amend- ment, and in those circumstances the Fourth Amendment is supreme. See U. S. Const., Art VI, cl. 2. But no differ- ent from any other local law, the remedy for such circum- stances should be an as-applied injunction limited to the conflict with the Fourth Amendment. Such an injunction would protect a hotel from being “searched 10 times a day, every day, for three months, without any violation being found.” Ante, at 11. But unlike facial invalidation, an as- applied injunction does not produce collateral damage. Section 41.49(3)(a) should be enforceable in those many cases in which the Fourth Amendment is not violated. There are serious arguments that the Fourth Amend- ment’s application to warrantless searches and seizures is inherently inconsistent with facial challenges. See Sibron v. New York, 2 U.S. 40, (explaining that because of the Fourth Amendment’s reasonableness re- Cite as: 576 U. S. (2015) 5 ALITO, J., dissenting quirement, “[t]he constitutional validity of a warrantless search is pre-eminently the sort of question which can only be decided in the concrete factual context of the individual case”); Brief for Manhattan Institute for Policy Research as Amicus Curiae 33 (“A constitutional claim under the first clause of the Fourth Amendment is never a ‘facial’ challenge, because it is always and inherently a challenge to executive action”). But assuming such facial challenges ever make sense conceptually, this particular one fails under basic principles of facial invalidation. The Court’s contrary holding is befuddling. I respectfully dissent.

Justice Thomas

majority

Florida v. White

1999-05-17

https://www.courtlistener.com/opinion/118287/florida-v-white/

https://www.courtlistener.com/api/rest/v3/clusters/118287/

1998-055

The Florida Contraband Forfeiture Act provides that certain forms of contraband, including motor vehicles used in violation of the Act's provisions, may be seized and potentially forfeited. In this case, we must decide whether the Fourth Amendment requires the police to obtain a warrant before seizing an automobile from a public place when they have probable cause to believe that it is forfeitable contraband. We hold that it does not. I On three occasions in July and August 1993, police officers observed respondent Tyvessel Tyvorus White using his car to deliver cocaine, and thereby developed probable cause to believe that his car was subject to forfeiture under the Florida Contraband Forfeiture Act (Act), Fla. Stat. § 932.701 et seq. (1997).[1] Several months later, the police arrested respondent at his place of employment on charges unrelated to the drug transactions observed in July and August 1993. At the same time, the arresting officers, without securing a warrant, seized respondent's automobile in accordance with the provisions of the Act. See § 932.703(2)(a).[2] They seized the *562 vehicle solely because they believed that it was forfeitable under the Act. During a subsequent inventory search, the police found two pieces of crack cocaine in the ashtray. Based on the discovery of the cocaine, respondent was charged with possession of a controlled substance in violation of Florida law. At histrial on the possession charge, respondent filed a motion to suppress the evidence discovered during the inventory search. He argued that the warrantless seizure of his car violated the Fourth Amendment, thereby making the cocaine the "fruit of the poisonous tree." The trial court initially reserved ruling on respondent's motion, but later denied it after the jury returned a guilty verdict. On appeal, the Florida First District Court of Appeal affirmed. 680 So. 2d 550 (1996). Adopting the position of a majority of state and federal courts to have considered the question, the court rejected respondent's argument that the Fourth Amendment required the police to secure a warrant prior to seizing his vehicle. Id., at 554. Because the Florida Supreme Court and this Court had not directly addressed the issue, the court certified to the Florida Supreme Court the question whether, absent exigent circumstances, the warrantless seizure of an automobile under the Act violated the Fourth Amendment. Id., at 555. In a divided opinion, the Florida Supreme Court answered the certified question in the affirmative, quashed the First District Court of Appeal's opinion, and remanded. 710 So. 2d 949, 955 (1998). The majority of the court concluded that, absent exigent circumstances, the Fourth Amendment requires the police to obtain a warrant prior to seizing property *563 that has been used in violation of the Act. Ibid. According to the court, the fact that the police develop probable cause to believe that such a violation occurred does not, standing alone, justify a warrantless seizure. The court expressly rejected the holding of the Eleventh Circuit, see United States v. Valdes, 876 F.2d 1554 (1989), and the majority of other Federal Circuits to have addressed the same issue in the context of the federal civil forfeiture law, 21 U.S. C. § 881, which is similar to Florida's. See United States v. Decker, 19 F.3d 287 (CA6 1994) (per curiam); United States v. Pace, 898 F.2d 1218, 1241 (CA7 1990); United States v. One 1978 Mercedes Benz, 711 F.2d 1297 (CA5 1983); United States v. Kemp, 690 F.2d 397 (CA4 1982); United States v. Bush, 647 F.2d 357 (CA3 1981). But see United States v. Dixon, 1 F.3d 1080 (CA10 1993); United States v. Lasanta, 978 F.2d 1300 (CA2 1992); United States v.Linn, 880 F.2d 209 (CA9 1989). We granted certiorari, 525 U.S. 1000 (1998), and now reverse. II The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," and further provides that "no Warrants shall issue, but upon probable cause." U. S. Const., Amdt. 4. In deciding whether a challenged governmental action violates the Amendment, we have taken care to inquire whether the action was regarded as an unlawful search and seizure when the Amendment was framed. See Wyoming v. Houghton, ante, at 299; Carroll v. United States, 267 U.S. 132, 149 (1925) ("The Fourth Amendment is to be construed in light of what was deemed an unreasonable search and seizure when it was adopted, and in a manner which will conserve public interests as well as the interests and rights of individual citizens"). In Carroll, we held that when federal officers have probable cause to believe that an automobile contains contraband, *564 the Fourth Amendment does not require them to obtain a warrant prior to searching the car for and seizing the contraband. Our holding was rooted in federal law enforcement practice at the time of the adoption of the Fourth Amendment. Specifically, we looked to laws of the First, Second, and Fourth Congresses that authorized federal officers to conduct warrantless searches of ships and to seize concealed goods subject to duties. Id., at 150-151 (citing Act of July 31, 1789, §§ 24, 29, 1 Stat. 43; Act of Aug. 4, 1790, § 50, 1 Stat. 170; Act of Feb. 18, 1793, § 27, 1 Stat. 315; Act of Mar. 2, 1799, §§ 68-70, 1 Stat. 677, 678). These enactments led us to conclude that "contemporaneously with the adoption of the Fourth Amendment," Congress distinguished "the necessity for a search warrant between goods subject to forfeiture, when concealed in a dwelling house or similar place, and like goods in course of transportation and concealed in a movable vessel where they readily could be put out of reach of a search warrant." 267 U.S., at 151. The Florida Supreme Court recognized that under Carroll, the police could search respondent's car, without obtaining a warrant, if they had probable cause to believe that it contained contraband. The court, however, rejected the argument that the warrantless seizure of respondent's vehicle itself also was appropriate under Carroll and its progeny. It reasoned that "[t]here is a vast difference between permitting the immediate search of a movable automobile based on actual knowledge that it then contains contraband [and] the discretionary seizure of a citizen's automobile based upon a belief that it may have been used at some time in the past to assist in illegal activity." 710 So. 2d, at 953. We disagree. The principles underlying the rule in Carroll and the founding-era statutes upon which they are based fully support the conclusion that the warrantless seizure of respondent's car did not violate the Fourth Amendment. Although, as the Florida Supreme Court observed, the police lacked *565 probable cause to believe that respondent's car contained contraband, see 710 So. 2d, at 953, they certainly had probable cause to believe that the vehicle itself was contraband under Florida law.[3] Recognition of the need to seize readily movable contraband before it is spirited away undoubtedly underlies the early federal laws relied upon in Carroll. See 267 U.S., at 150-152; see also California v. Carney, 471 U.S. 386, 390 (1985); South Dakota v. Opperman, 428 U.S. 364, 367 (1976). This need is equally weighty when the automobile, as opposed to its contents, is the contraband that the police seek to secure.[4] Furthermore, the early federal statutes that we looked to in Carroll, like the Florida Contraband Forfeiture Act, authorized the warrantless seizure of both goods subject to duties and the ships upon which those goods were concealed. See, e. g., 1 Stat. 43, 46; 1 Stat. 170, 174; 1 Stat. 677, 678, 692. In addition to the special considerations recognized in the context of movable items, our Fourth Amendment jurisprudence has consistently accorded law enforcement officials greater latitude in exercising their duties in public places. For example, although a warrant presumptively is required for a felony arrest in a suspect's home, the Fourth Amendment permits warrantless arrests in public places where an officer has probable cause to believe that a felony has occurred. See United States v. Watson, 423 U.S. 411, 416-424 (1976). In explaining this rule, we have drawn upon the established *566 "distinction between a warrantless seizure in an open area and such a seizure on private premises." Payton v. New York, 445 U.S. 573, 587 (1980); see also id., at 586-587 ("It is also well settled that objects such as weapons or contraband found in a public place may be seized by the police without a warrant"). The principle that underlies Watson extends to the seizure at issue in this case. Indeed, the facts of this case are nearly indistinguishable from those in G. M. Leasing Corp. v. United States, 429 U.S. 338 (1977). There, we considered whether federal agents violated the Fourth Amendment by failing to secure a warrant prior to seizing automobiles in partial satisfaction of income tax assessments. Id., at 351. We concluded that they did not, reasoning that "[t]he seizures of the automobiles in this case took place on public streets, parking lots, or other open places, and did not involve any invasion of privacy." Ibid. Here, because the police seized respondent's vehicle from a public area—respondent's employer's parking lot—the warrantless seizure also did not involve any invasion of respondent's privacy. Based on the relevant history and our prior precedent, we therefore conclude that the Fourth Amendment did not require a warrant to seize respondent's automobile in these circumstances. The judgment of the Florida Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion. It is so ordered.

The Florida Contraband Forfeiture Act provides that certain forms of contraband, including motor vehicles used in violation of the Act's provisions, may be seized and potentially forfeited. In this case, we must decide whether the Fourth Amendment requires the police to obtain a warrant before seizing an automobile from a public place when they have probable cause to believe that it is forfeitable contraband. We hold that it does not. I On three occasions in July and August police officers observed respondent Tyvessel Tyvorus White using his car to deliver cocaine, and thereby developed probable cause to believe that his car was subject to forfeiture under the Florida Contraband Forfeiture Act (Act), et seq. (1997).[1] Several months later, the police arrested respondent at his place of employment on charges unrelated to the drug transactions observed in July and August At the same time, the arresting officers, without securing a warrant, seized respondent's automobile in accordance with the provisions of the Act. See 932.703(2)(a).[2] They seized the *562 vehicle solely because they believed that it was forfeitable under the Act. During a subsequent inventory search, the police found two pieces of crack cocaine in the ashtray. Based on the discovery of the cocaine, respondent was charged with possession of a controlled substance in violation of Florida law. At histrial on the possession charge, respondent filed a motion to suppress the evidence discovered during the inventory search. He argued that the warrantless seizure of his car violated the Fourth Amendment, thereby making the cocaine the "fruit of the poisonous tree." The trial court initially reserved ruling on respondent's motion, but later denied it after the jury returned a guilty verdict. On appeal, the Florida First District Court of Appeal affirmed. Adopting the position of a majority of state and federal courts to have considered the question, the court rejected respondent's argument that the Fourth Amendment required the police to secure a warrant prior to seizing his vehicle. Because the Florida Supreme Court and this Court had not directly addressed the issue, the court certified to the Florida Supreme Court the question whether, absent exigent circumstances, the warrantless seizure of an automobile under the Act violated the Fourth Amendment. In a divided opinion, the Florida Supreme Court answered the certified question in the affirmative, quashed the First District Court of Appeal's opinion, and remanded. The majority of the court concluded that, absent exigent circumstances, the Fourth Amendment requires the police to obtain a warrant prior to seizing property *563 that has been used in violation of the Act. According to the court, the fact that the police develop probable cause to believe that such a violation occurred does not, standing alone, justify a warrantless seizure. The court expressly rejected the holding of the Eleventh Circuit, see United and the majority of other Federal Circuits to have addressed the same issue in the context of the federal civil forfeiture law, 21 U.S. C. 881, which is similar to Florida's. See United ; United ; United ; United ; United But see United ; United ; United States v.Linn, We granted certiorari, and now reverse. II The Fourth Amendment guarantees "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," and further provides that "no Warrants shall issue, but upon probable cause." U. S. Const., Amdt. 4. In deciding whether a challenged governmental action violates the Amendment, we have taken care to inquire whether the action was regarded as an unlawful search and seizure when the Amendment was framed. See Wyoming v. Houghton, ante, at 299; In Carroll, we held that when federal officers have probable cause to believe that an automobile contains contraband, *564 the Fourth Amendment does not require them to obtain a warrant prior to searching the car for and seizing the contraband. Our holding was rooted in federal law enforcement practice at the time of the adoption of the Fourth Amendment. Specifically, we looked to laws of the First, Second, and Fourth Congresses that authorized federal officers to conduct warrantless searches of ships and to seize concealed goods subject to duties. at 150-151 (citing Act of July 31, 1789, 24, 29, ; Act of Aug. 4, 1790, 50, ; Act of Feb. 18, 1793, 27, ; Act of Mar. 2, 1799, 68-70, 678). These enactments led us to conclude that "contemporaneously with the adoption of the Fourth Amendment," Congress distinguished "the necessity for a search warrant between goods subject to forfeiture, when concealed in a dwelling house or similar place, and like goods in course of transportation and concealed in a movable vessel where they readily could be put out of reach of a search warrant." The Florida Supreme Court recognized that under Carroll, the police could search respondent's car, without obtaining a warrant, if they had probable cause to believe that it contained contraband. The court, however, rejected the argument that the warrantless seizure of respondent's vehicle itself also was appropriate under Carroll and its progeny. It reasoned that "[t]here is a vast difference between permitting the immediate search of a movable automobile based on actual knowledge that it then contains contraband [and] the discretionary seizure of a citizen's automobile based upon a belief that it may have been used at some time in the past to assist in illegal activity." We disagree. The principles underlying the rule in Carroll and the founding-era statutes upon which they are based fully support the conclusion that the warrantless seizure of respondent's car did not violate the Fourth Amendment. Although, as the Florida Supreme Court observed, the police lacked *565 probable cause to believe that respondent's car contained contraband, see they certainly had probable cause to believe that the vehicle itself was contraband under Florida law.[3] Recognition of the need to seize readily movable contraband before it is spirited away undoubtedly underlies the early federal laws relied upon in Carroll. See -152; see also ; South This need is equally weighty when the automobile, as opposed to its contents, is the contraband that the police seek to secure.[4] Furthermore, the early federal statutes that we looked to in Carroll, like the Florida Contraband Forfeiture Act, authorized the warrantless seizure of both goods subject to duties and the ships upon which those goods were concealed. See, e. g., 46; 174; 678, 692. In addition to the special considerations recognized in the context of movable items, our Fourth Amendment jurisprudence has consistently accorded law enforcement officials greater latitude in exercising their duties in public places. For example, although a warrant presumptively is required for a felony arrest in a suspect's home, the Fourth Amendment permits warrantless arrests in public places where an officer has probable cause to believe that a felony has occurred. See United In explaining this rule, we have drawn upon the established *566 "distinction between a warrantless seizure in an open area and such a seizure on private premises." ; see also at 586- The principle that underlies Watson extends to the seizure at issue in this case. Indeed, the facts of this case are nearly indistinguishable from those in G. M. Leasing There, we considered whether federal agents violated the Fourth Amendment by failing to secure a warrant prior to seizing automobiles in partial satisfaction of income tax assessments. We concluded that they did not, reasoning that "[t]he seizures of the automobiles in this case took place on public streets, parking lots, or other open places, and did not involve any invasion of privacy." Here, because the police seized respondent's vehicle from a public area—respondent's employer's parking lot—the warrantless seizure also did not involve any invasion of respondent's privacy. Based on the relevant history and our prior precedent, we therefore conclude that the Fourth Amendment did not require a warrant to seize respondent's automobile in these circumstances. The judgment of the Florida Supreme Court is reversed, and the case is remanded for proceedings not inconsistent with this opinion. It is so ordered.

Justice Souter

concurring

Florida v. White

1999-05-17

https://www.courtlistener.com/opinion/118287/florida-v-white/

https://www.courtlistener.com/api/rest/v3/clusters/118287/

1998-055

I join the Court's opinion subject to a qualification against reading our holding as a general endorsement of warrantless seizures of anything a State chooses to call "contraband," whether or not the property happens to be in public when seized. The Fourth Amendment does not concede any talismanic *567 significance to use of the term "contraband" whenever a legislature may resort to a novel forfeiture sanction in the interest of law enforcement, as legislatures are evincing increasing ingenuity in doing, cf., e. g., Bennis v. Michigan, 516 U.S. 442, 443-446 (1996); id., at 458 (Stevens, J., dissenting); United States v. James Daniel Good Real Property, 510 U.S. 43, 81-82, and n. 1 (1993) (Thomas, J., concurring in part and dissenting in part) (expressing concern about the breadth of new forfeiture statutes). Moreover, G. M. Leasing Corp. v. United States, 429 U.S. 338 (1977) (upon which we rely today), endorsed the public character of a warrantless seizure scheme by reference to traditional enforcement of government revenue laws, id., at 351-352, and n. 18 (citing, e. g., Murray's Lessee v. Hoboken Land & Improvement Co., 18 How. 272 (1856)), and the legality of seizing abandoned contraband in public view, 429 U.S., at 352 (citing Hester v. United States, 265 U.S. 57 (1924)).

I join the Court's opinion subject to a qualification against reading our holding as a general endorsement of warrantless seizures of anything a State chooses to call "contraband," whether or not the property happens to be in public when seized. The Fourth Amendment does not concede any talismanic *567 significance to use of the term "contraband" whenever a legislature may resort to a novel forfeiture sanction in the interest of law enforcement, as legislatures are evincing increasing ingenuity in doing, cf., e. g., ; ; United (expressing concern about the breadth of new forfeiture statutes). Moreover, G. M. Leasing endorsed the public character of a warrantless seizure scheme by reference to traditional enforcement of government revenue laws, 8 ), and the legality of seizing abandoned contraband in public ).

Justice Stevens

dissenting

Florida v. White

1999-05-17

https://www.courtlistener.com/opinion/118287/florida-v-white/

https://www.courtlistener.com/api/rest/v3/clusters/118287/

1998-055

During the summer of 1993, Florida police obtained evidence that Tyvessel White was engaged in the sale and delivery of narcotics, and that he was using his car to facilitate the enterprise. For reasons unexplained, the police neither arrested White at that point nor seized his automobile as an instrumentality of his alleged narcotics offenses. Most important to the resolution of this case, the police did not seek to obtain a warrant before seizing White's car that fall—over two months after the last event that justified the seizure. Instead, after arresting White at work on an unrelated matter and obtaining his car keys, the officers seized White's automobile without a warrant from his employer's parking lot and performed an inventory search. The Florida Supreme Court concluded that the seizure, which took place absent exigent circumstances or probable cause to believe *568 that narcotics were present, was invalid. 710 So. 2d 949 (1998).[1] In 1971, after advising us that "we must not lose sight of the Fourth Amendment's fundamental guarantee," Justice Stewart made this comment on what was then settled law: "[T]he most basic constitutional rule in this area is that `searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.' The exceptions are `jealously and carefully drawn,' and there must be `a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative.' `[T]he burden is on those seeking the exemption to show the need for it.' " Coolidge v. New Hampshire, 403 U.S. 443, 453, 454-455 (footnotes omitted). Because the Fourth Amendment plainly "protects property as well as privacy" and seizures as well as searches, Soldal v. Cook County, 506 U.S. 56, 62-64 (1992), I would apply to the present case our longstanding warrant presumption.[2]*569 In the context of property seizures by law enforcement authorities, the presumption might be overcome more easily in the absence of an accompanying privacy or liberty interest. Nevertheless, I would look to the warrant clause as a measure of reasonableness in such cases, United States v. United States Dist. Court for Eastern Dist. of Mich., 407 U.S. 297, 315 (1972), and the circumstances of this case do not convince me that the role of a neutral magistrate was dispensable. The Court does not expressly disavow the warrant presumption urged by White and followed by the Florida Supreme Court, but its decision suggests that the exceptions have all but swallowed the general rule. To defend the officers' warrantless seizure, the State points to cases establishing an "automobile exception" to our ordinary demand for a warrant before a lawful search may be conducted. Each of those cases, however, involved searches of automobiles for contraband or temporary seizures of automobiles to effect such searches.[3] Such intrusions comport with the practice *570 of federal customs officers during the Nation's early history on which the majority relies, as well as the practicalities of modern life. But those traditions and realities are weak support for a warrantless seizure of the vehicle itself, months after the property was proverbially tainted by its physical proximity to the drug trade, and while the owner is safely in police custody. The stated purposes for allowing warrantless vehicle searches are likewise insufficient to validate the seizure at issue, whether one emphasizes the ready mobility of automobiles or the pervasive regulation that diminishes the owner's privacy interests in such property. No one seriously suggests that the State's regulatory regime for road safety makes acceptable such unchecked and potentially permanent seizures of automobiles under the State's criminal laws. And, as the Florida Supreme Court cogently explained, an exigent circumstance rationale is not available when the seizure is based upon a belief that the automobile may have been used at some time in the past to assist in illegal activity and the owner is already in custody.[4] Moreover, the state court's conclusion that the warrant process is a sensible protection from abuse of government power is bolstered by the inherent risks of hindsight at postseizure hearings and law enforcement agencies' pecuniary interest in the seizure of such property. See Fla. Stat. § 932.704(1) (1997); cf. United States v. James Daniel Good Real Property, 510 U.S. 43, 55-56 (1993). *571 Were we confronted with property that Florida deemed unlawful for private citizens to possess regardless of purpose, and had the State relied on the plain-view doctrine, perhaps a warrantless seizure would have been defensible. See Horton v. California, 496 U.S. 128 (1990); Arizona v. Hicks, 480 U.S. 321, 327 (1987) (citing Payton v. New York, 445 U.S. 573 (1980)). But "`[t]here is nothing even remotely criminal in possessing an automobile,' " Austin v. United States, 509 U.S. 602, 621 (1993) (quoting One 1958 Plymouth Sedan v. Pennsylvania, 380 U.S. 693, 699 (1965)); no serious fear for officer safety or loss of evidence can be asserted in this case considering the delay and circumstances of the seizure; and only the automobile exception is at issue, 710 So. 2d, at 952; Brief for Petitioner 6, 28.[5] In any event, it seems to me that the State's treatment of certain vehicles as "contraband" based on past use provides an added reason for insisting on an appraisal of the evidence by a neutral magistrate, rather than a justification for expanding the discretionary authority of the police. Unlike a search that is contemporaneous with an officer's probablecause determination, Horton, 496 U. S., at 130-131, a belated seizure may involve a serious intrusion on the rights of innocent persons with no connection to the earlier offense. Cf. Bennis v. Michigan, 516 U.S. 442 (1996). And a seizure supported only by the officer's conclusion that at some time in the past there was probable cause to believe that the car was then being used illegally is especially intrusive when followed by a routine and predictable inventory search— *572 even though there may be no basis for believing the car then contains any contraband or other evidence of wrongdoing.[6] Of course, requiring police officers to obtain warrants in cases such as the one before us will not allay every concern private property owners might have regarding government discretion and potentially permanent seizures of private property under the authority of a State's criminal laws. Had the officers in this case obtained a warrant in July or August, perhaps they nevertheless could or would have executed that warrant months later; and, as the Court suggests, ante, at 565, n. 4, delay between the basis for a seizure and its effectuation might support a Fourth Amendment objection whether or not a warrant was obtained. That said, a warrant application interjects the judgment of a neutral decisionmaker, one with no pecuniary interest in the matter, see Connally v. Georgia, 429 U.S. 245, 250-251 (1977) (per curiam), before the burden of obtaining possession of the property shifts to the individual. Knowing that a neutral party *573 will be involved before private property is seized can only help ensure that law enforcement officers will initiate forfeiture proceedings only when they are truly justified. A warrant requirement might not prevent delay and the attendant opportunity for official mischief through discretionary timing, but it surely makes delay more tolerable. Without a legitimate exception, the presumption should prevail. Indeed, the particularly troubling aspect of this case is not that the State provides a weak excuse for failing to obtain a warrant either before or after White's arrest, but that it offers us no reason at all. The justification cannot be that the authorities feared their narcotics investigation would be exposed and hindered if a warrant had been obtained. Ex parte warrant applications provide neutral review of police determinations of probable cause, but such procedures are by no means public. And the officers had months to take advantage of them. On this record, one must assume that the officers who seized White's car simply preferred to avoid the hassle of seeking approval from a judicial officer. I would not permit bare convenience to overcome our established preference for the warrant process as a check against arbitrary intrusions by law enforcement agencies "engaged in the often competitive"—and, here, potentially lucrative—"enterprise of ferreting out crime." Johnson v. United States, 333 U.S. 10, 14-15 (1948). Because I agree with the Florida Supreme Court's judgment that this seizure was not reasonable without a warrant, I respectfully dissent.

During the summer of 1993, Florida police obtained evidence that Tyvessel White was engaged in the sale and delivery of narcotics, and that he was using his car to facilitate the enterprise. For reasons unexplained, the police neither arrested White at that point nor seized his automobile as an instrumentality of his alleged narcotics offenses. Most important to the resolution of this case, the police did not seek to obtain a warrant before seizing White's car that fall—over two months after the last event that justified the seizure. Instead, after arresting White at work on an unrelated matter and obtaining his car keys, the officers seized White's automobile without a warrant from his employer's parking lot and performed an inventory search. The Florida Supreme Court concluded that the seizure, which took place absent exigent circumstances or probable cause to believe *568 that narcotics were present, was invalid.[1] In 1971, after advising us that "we must not lose sight of the Fourth Amendment's fundamental guarantee," Justice Stewart made this comment on what was then settled law: "[T]he most basic constitutional rule in this area is that `searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.' The exceptions are `jealously and carefully drawn,' and there must be `a showing by those who seek exemption that the exigencies of the situation made that course imperative.' `[T]he burden is on those seeking the exemption to show the need for it.' " (footnotes omitted). Because the Fourth Amendment plainly "protects property as well as privacy" and seizures as well as searches, I would apply to the present case our longstanding warrant presumption.[2]*569 In the context of property seizures by law enforcement authorities, the presumption might be overcome more easily in the absence of an accompanying privacy or liberty interest. Nevertheless, I would look to the warrant clause as a measure of reasonableness in such cases, United and the circumstances of this case do not convince me that the role of a neutral magistrate was dispensable. The Court does not expressly disavow the warrant presumption urged by White and followed by the Florida Supreme Court, but its decision suggests that the exceptions have all but swallowed the general rule. To defend the officers' warrantless seizure, the State points to cases establishing an "automobile exception" to our ordinary demand for a warrant before a lawful search may be conducted. Each of those cases, however, involved searches of automobiles for contraband or temporary seizures of automobiles to effect such searches.[3] Such intrusions comport with the practice *570 of federal customs officers during the Nation's early history on which the majority relies, as well as the practicalities of modern life. But those traditions and realities are weak support for a warrantless seizure of the vehicle itself, months after the property was proverbially tainted by its physical proximity to the drug trade, and while the owner is safely in police custody. The stated purposes for allowing warrantless vehicle searches are likewise insufficient to validate the seizure at whether one emphasizes the ready mobility of automobiles or the pervasive regulation that diminishes the owner's privacy interests in such property. No one seriously suggests that the State's regulatory regime for road safety makes acceptable such unchecked and potentially permanent seizures of automobiles under the State's criminal laws. And, as the Florida Supreme Court cogently explained, an exigent circumstance rationale is not available when the seizure is based upon a belief that the automobile may have been used at some time in the past to assist in illegal activity and the owner is already in custody.[4] Moreover, the state court's conclusion that the warrant process is a sensible protection from abuse of government power is bolstered by the inherent risks of hindsight at postseizure hearings and law enforcement agencies' pecuniary interest in the seizure of such property. See (1) (1997); cf. United *571 Were we confronted with property that Florida deemed unlawful for private citizens to possess regardless of purpose, and had the State relied on the plain-view doctrine, perhaps a warrantless seizure would have been defensible. See ; But "`[t]here is nothing even remotely criminal in possessing an automobile,' " ; no serious fear for officer safety or loss of evidence can be asserted in this case considering the delay and circumstances of the seizure; and only the automobile exception is at ; Brief for Petitioner 6, 28.[5] In any event, it seems to me that the State's treatment of certain vehicles as "contraband" based on past use provides an added reason for insisting on an appraisal of the evidence by a neutral magistrate, rather than a justification for expanding the discretionary authority of the police. Unlike a search that is contemporaneous with an officer's probablecause determination, Horton, -131, a belated seizure may involve a serious intrusion on the rights of innocent persons with no connection to the earlier offense. Cf. And a seizure supported only by the officer's conclusion that at some time in the past there was probable cause to believe that the car was then being used illegally is especially intrusive when followed by a routine and predictable inventory search— *572 even though there may be no basis for believing the car then contains any contraband or other evidence of wrongdoing.[6] Of course, requiring police officers to obtain warrants in cases such as the one before us will not allay every concern private property owners might have regarding government discretion and potentially permanent seizures of private property under the authority of a State's criminal laws. Had the officers in this case obtained a warrant in July or August, perhaps they nevertheless could or would have executed that warrant months later; and, as the Court suggests, ante, at 565, n. 4, delay between the basis for a seizure and its effectuation might support a Fourth Amendment objection whether or not a warrant was obtained. That said, a warrant application interjects the judgment of a neutral decisionmaker, one with no pecuniary interest in the matter, see before the burden of obtaining possession of the property shifts to the individual. Knowing that a neutral party *573 will be involved before private property is seized can only help ensure that law enforcement officers will initiate forfeiture proceedings only when they are truly justified. A warrant requirement might not prevent delay and the attendant opportunity for official mischief through discretionary timing, but it surely makes delay more tolerable. Without a legitimate exception, the presumption should prevail. Indeed, the particularly troubling aspect of this case is not that the State provides a weak excuse for failing to obtain a warrant either before or after White's arrest, but that it offers us no reason at all. The justification cannot be that the authorities feared their narcotics investigation would be exposed and hindered if a warrant had been obtained. Ex parte warrant applications provide neutral review of police determinations of probable cause, but such procedures are by no means public. And the officers had months to take advantage of them. On this record, one must assume that the officers who seized White's car simply preferred to avoid the hassle of seeking approval from a judicial officer. I would not permit bare convenience to overcome our established preference for the warrant process as a check against arbitrary intrusions by law enforcement agencies "engaged in the often competitive"—and, here, potentially lucrative—"enterprise of ferreting out crime." Because I agree with the Florida Supreme Court's judgment that this seizure was not reasonable without a warrant, I respectfully dissent.

Justice Scalia

majority

Rockwell Intern. Corp. v. United States

2007-03-27

https://www.courtlistener.com/opinion/145751/rockwell-intern-corp-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/145751/

2006-024

The False Claims Act, 31 U.S.C. §§ 3729-3733, eliminates federal-court jurisdiction over actions under § 3730 of the Act that are based upon the public disclosure of allegations or transactions "unless the action is brought by the Attorney General or the person bringing the action is an original source of the information." § 3730(e)(4)(A). We decide whether respondent James Stone was an original source. I The mixture of concrete and pond sludge that is the subject of this case has taken nearly two decades to seep, so to speak, into this Court. Given the long history and the complexity of this litigation, it is well to describe the facts in some detail. A From 1975 through 1989, petitioner Rockwell International Corp. was under a management and operating contract with the Department of Energy (DOE) to run the Rocky Flats nuclear weapons plant in Colorado. The most significant portion of Rockwell's compensation came in the form of a semiannual "`award fee,'" the amount of which depended on DOE's evaluation of Rockwell's performance in a number of areas, including environmental, safety, and health concerns. United States ex rel. Stone v. Rockwell Int'l, Corp., 92 Fed. Appx. 708, 714 (C.A.10 2004). From November 1980 through March 1986, James Stone worked as an engineer at the Rocky Flats plant. In the early 1980's, Rockwell explored the possibility of disposing of the toxic pond sludge that accumulated in solar evaporation ponds at the facility, by mixing it with cement. The idea was to pour the mixture into large rectangular boxes, where it would solidify into "pondcrete" blocks that could be stored onsite or transported to other sites for disposal. Stone reviewed a proposed manufacturing process for pondcrete in 1982. He concluded that the proposal "would not work," App. 175, and communicated that conclusion to Rockwell management in a *1402 written "Engineering Order." As Stone would later explain, he believed "the suggested process would result in an unstable mixture that would later deteriorate and cause unwanted release of toxic wastes to the environment." Ibid. He believed this because he "foresaw that the piping system" that extracted sludge from the solar ponds "would not properly remove the sludge and would lead to an inadequate mixture of sludge/waste and cement such that the `pond crete' blocks would rapidly disintegrate thus creating additional contamination problems." Id., at 290. Notwithstanding Stone's prediction, Rockwell proceeded with its pondcrete project and successfully manufactured "concrete hard" pondcrete during the period of Stone's employment at Rocky Flats. It was only after Stone was laid off in March 1986 that what the parties have called "insolid" pondcrete blocks were discovered. According to respondents, Rockwell knew by October 1986 that a substantial number of pondcrete blocks were insolid, but DOE did not become aware of the problem until May 1988, when several pondcrete blocks began to leak, leading to the discovery of thousands of other insolid blocks. The media reported these discoveries, 3 Appellants' App. in Nos. 99-1351, 99-1352, 99-1353 (CA10), pp. 889-38 to 889-39; and attributed the malfunction to Rockwell's reduction of the ratio of concrete to sludge in the mixture. In June 1987, more than a year after he had left Rockwell's employ, Stone went to the Federal Bureau of Investigation (FBI) with allegations of environmental crimes at Rocky Flats during the time of his employment. According to the court below, Stone alleged that "contrary to public knowledge, Rocky Flats accepted hazardous and nuclear waste from other DOE facilities; that Rockwell employees were `forbidden from discussing any controversies in front of a DOE employee'; that although Rocky Flats' fluid bed incinerators failed testing in 1981, the pilot incinerator remained on line and was used to incinerate wastes daily since 1981, including plutonium wastes which were then sent out for burial; that Rockwell distilled and fractionated various oils and solvents although the wastes were geared for incineration; that Stone believed that the ground water was contaminated from previous waste burial and land application, and that hazardous waste lagoons tended to overflow during and after `a good rain,' causing hazardous wastes to be discharged without first being treated." App. to Pet. for Cert. 4a. Stone provided the FBI with 2,300 pages of documents, buried among which was his 1982 engineering report predicting that the pondcrete-system design would not work. Stone did not discuss his pondcrete allegations with the FBI in their conversations.[1] Based in part on information allegedly learned from Stone, the Government obtained a search warrant for Rocky Flats, and on June 6, 1989, 75 FBI and Environmental Protection Agency agents raided the facility. The affidavit in support of the warrant included allegations (1) that pondcrete blocks were insolid "due to an inadequate waste-concrete mixture," App. 429, (2) that Rockwell obtained award fees based on its alleged "`excellent'" management of Rocky Flats, id., at 98, and (3) *1403 that Rockwell made false statements and concealed material facts in violation of the Resource Conservation and Recovery Act of 1976 (RCRA), 90 Stat. 2811, 42 U.S.C. § 6928, and 18 U.S.C. § 1001. Newspapers published these allegations. In March 1992, Rockwell pleaded guilty to 10 environmental violations, including the knowing storage of insolid pondcrete blocks in violation of RCRA. Rockwell agreed to pay $18.5 million in fines. B In July 1989, Stone filed a qui tam suit under the False Claims Act.[2] That Act prohibits false or fraudulent claims for payment to the United States, 31 U.S.C. § 3729(a), and authorizes civil actions to remedy such fraud to be brought by the Attorney General, § 3730(a), or by private individuals in the Government's name, § 3730(b)(1). The Act provides, however, that "[n]o court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions ... from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information." § 3730(e)(4)(A). An "original source" is "an individual who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action under this section which is based on the information." § 3730(e)(4)(B). Stone's complaint alleged that Rockwell was required to comply with certain federal and state environmental laws and regulations, including RCRA; that Rockwell committed numerous violations of these laws and regulations throughout the 1980's[3]; and that, in order to induce the Government to make payments or approvals under Rockwell's contract, Rockwell knowingly presented false and fraudulent claims to the Government in violation of the False Claims Act, 31 U.S.C. § 3729(a). As required under the Act, Stone filed his complaint under seal and simultaneously delivered to the Government a confidential disclosure statement describing "substantially all material evidence and information" in his possession, § 3730(b)(2). The statement identified 26 environmental and safety issues, only one of which involved pondcrete. With respect to that issue, Stone explained in his statement that he had reviewed the design for the pondcrete system and had foreseen that the piping mechanism would not properly remove the sludge, which in turn would lead to an inadequate mixture of sludge and cement. In December 1992, Rockwell moved to dismiss Stone's action for lack of subject-matter *1404 jurisdiction, arguing that the action was based on publicly disclosed allegations and that Stone was not an original source. The District Court denied the motion because, in its view, "Stone had direct and independent knowledge that Rockwell's compensation was linked to its compliance with environmental, health and safety regulations and that it allegedly concealed its deficient performance so that it would continue to receive payments." App. to Pet. for Cert. 61a. The Government initially declined to intervene in Stone's action, but later reversed course, and in November 1996, the District Court granted the Government's intervention. Several weeks later, at the suggestion of the District Court, the Government and Stone filed a joint amended complaint. As relevant here, the amended complaint alleged that Rockwell violated RCRA by storing leaky pondcrete blocks, but did not allege that any defect in the piping system (as predicted by Stone) caused insolid pondcrete.[4] Respondents clarified their allegations even further in a statement of claims which became part of the final pretrial order and which superseded their earlier pleadings. This said that the pondcrete's insolidity was due to "an incorrect cement/sludge ratio used in pondcrete operations, as well as due to inadequate process controls and inadequate inspection procedures." App. 470. It continued: "During the winter of 1986, Rockwell replaced its then pondcrete foreman, Norman Fryback, with Ron Teel. Teel increased pondcrete production rates in part by, among other things, reducing the amount of cement added to the blocks. Following the May 23, 1988 spill, Rockwell acknowledged that this reduced cement-to-sludge ratio was a major contributor to the existence of insufficiently solid pondcrete blocks on the storage pads." Id., at 476-477. The statement of claims again did not mention the piping problem asserted by Stone years earlier. Respondents' False Claims Act claims went to trial in 1999. None of the witnesses Stone had identified during discovery as having relevant knowledge testified at trial. And none of the documents Stone provided to the Government with his confidential disclosure statement was introduced in evidence at trial. Nor did respondents allege at trial that the defect in the piping system predicted by Stone caused insolid pondcrete. To the contrary, during closing arguments both Stone's counsel and the Government's counsel repeatedly explained to the jury that the pondcrete failed because Rockwell's new foreman used an insufficient cement-to-sludge ratio in an effort to increase pondcrete production. The verdict form divided the False Claims Act count into several different claims corresponding to different award-fee periods. The jury found in favor of respondents for the three periods covering the pondcrete allegations (April 1, 1987, to September 30, 1988), and found for Rockwell as to the remaining periods. The jury awarded damages of $1,390,775.80, which the District Court trebled pursuant to 31 U.S.C. § 3729(a). Rockwell filed a postverdict motion to dismiss Stone's claims under § 3730(e)(4), arguing that the claims were based on publicly disclosed allegations and that Stone was not an original source. In response, *1405 Stone acknowledged that his successful claims were based on publicly disclosed allegations, but asserted original-source status. The District Court agreed with Stone. The United States Court of Appeals for the Tenth Circuit affirmed in relevant part, but remanded the case for the District Court to determine whether Stone had disclosed his information to the Government before filing his qui tam action, as § 3730(e)(4)(B) required. On remand, the District Court found that Stone had produced the 1982 engineering order to the Government, but that the order was insufficient to communicate Stone's allegations. The District Court also found that Stone had not carried his burden of proving that he orally informed the FBI about his allegations before filing suit. On appeal, the Tenth Circuit disagreed with the District Court's conclusion and held (over the dissent of Judge Briscoe) that the 1982 engineering order sufficed to carry Stone's burden of persuasion. 92 Fed.Appx. 708. We granted certiorari, 548 U.S. ___, 127 S. Ct. 35, 165 L. Ed. 2d 1013 (2006), to decide whether Stone was an original source. II Section 3730(e)(4)(A) provides that "[n]o court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information." (Footnote omitted.) As discussed above, § 3730(e)(4)(B) defines "original source" as "an individual who [1] has direct and independent knowledge of the information on which the allegations are based and [2] has voluntarily provided the information to the Government before filing an action under this section which is based on the information." As this case comes to the Court, it is conceded that the claims on which Stone prevailed were based upon publicly disclosed allegations within the meaning of § 3730(e)(4)(A). The question is whether Stone qualified under the original-source exception to the public-disclosure bar. We begin with the possibility that little analysis is required in this case, for Stone asserts that Rockwell conceded his original-source status. Rockwell responds that it conceded no such thing and that, even had it done so, the concession would have been irrelevant because § 3730(e)(4) is jurisdictional. We agree with the latter proposition. It is true enough that the word "jurisdiction" does not in every context connote subject-matter jurisdiction. Noting that "jurisdiction" is "`a word of many, too many, meanings,'" we concluded in Steel Co. v. Citizens for Better Environment, 523 U.S. 83, 118 S. Ct. 1003, 140 L. Ed. 2d 210 (1998), that establishing the elements of an offense was not made a jurisdictional matter merely because the statute creating the cause of action was phrased as providing for "jurisdiction" over such suits. Id., at 90, 118 S. Ct. 1003 (quoting United States v. Vanness, 85 F.3d 661, 663, n. 2 (C.A.D.C.1996)). Here, however, the issue is not whether casting the creation of a cause of action in jurisdictional terms somehow limits the general grant of jurisdiction under which that cause of action would normally be brought, but rather whether a clear and explicit withdrawal of jurisdiction withdraws jurisdiction. It undoubtedly does so. Just last Term we stated that, "[i]f the Legislature clearly states that a threshold limitation on a statute's scope shall count as jurisdictional, the courts and litigants will be duly instructed *1406 and will not be left to wrestle with the issue." Arbaugh v. Y & H Corp., 546 U.S. 500, 515-516, 126 S. Ct. 1235, 163 L. Ed. 2d 1097 (2006) (footnote omitted). Here the jurisdictional nature of the original-source requirement is clear ex visceribus verborum. Indeed, we have already stated that § 3730(e)(4) speaks to "the power of a particular court" as well as "the substantive rights of the parties." Hughes Aircraft Co. v. United States ex rel. Schumer, 520 U.S. 939, 951, 117 S. Ct. 1871, 138 L. Ed. 2d 135 (1997). Stone's contrary position rests entirely on dicta from a single Court of Appeals decision, see United States ex rel. Fallon v. Accudyne Corp., 97 F.3d 937, 940-941 (C.A.7 1996). Accudyne thought it significant that jurisdiction over False Claims Act cases is conferred by 28 U.S.C. §§ 1331 and 1345 (the federal-question and United-States-as-plaintiff provisions of the Judicial Code) and 31 U.S.C. § 3732(a) (the provision of the False Claims Act establishing federal-court venue and conferring federal-court jurisdiction over related state-law claims), rather than § 3730, which is the "section" referenced in § 3730(e)(4). To eliminate jurisdiction, the court believed, it is those jurisdiction-conferring sections that would have to be referenced. We know of nothing in logic or authority to support this. The jurisdiction-removing provision here does not say "no court shall have jurisdiction under this section," but rather "no court shall have jurisdiction over an action under this section." That is surely the most natural way to achieve the desired result of eliminating jurisdiction over a category of False Claims Act actions—rather than listing all the conceivable provisions of the United States Code whose conferral of jurisdiction is being eliminated. (In addition to the provisions cited by the Accudyne court, one might also have to mention the diversity-jurisdiction provision, 28 U.S.C. § 1332, and the supplemental-jurisdiction provision, § 1367.) Accudyne next observed that the public-disclosure bar limits only who may speak for the United States on a subject and who if anyone gets a financial reward, not the "categories of disputes that may be resolved (a real `jurisdictional' limit)." 97 F.3d, at 941. But this is a classic begging of the question, which is precisely whether there has been removed from the courts' jurisdiction that category of disputes consisting of False Claims Act qui tam suits based on publicly disclosed allegations as to which the relator is not an original source of the information. Nothing prevents Congress from defining the "category" of excluded suits in any manner it wishes. See, e.g., 28 U.S.C. § 1500 (no jurisdiction over "any claim for or in respect to which the plaintiff ... has pending in any other court any suit ... against the United States"). Lastly, Accudyne asserted that "the Supreme Court had held that a similar reference to jurisdiction in the Norris-LaGuardia Act, 29 U.S.C. §§ 101, 104, limits remedies rather than subject-matter jurisdiction." 97 F.3d, at 941 (citing Burlington Northern R. Co. v. Maintenance of Way Employees, 481 U.S. 429, 444-446, 107 S. Ct. 1841, 95 L. Ed. 2d 381 (1987)). But the language of the Norris-LaGuardia Act is in fact not similar. It provides that "[n]o court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute...." 29 U.S.C. § 104 (emphasis added). It is facially a limitation upon the relief that can be accorded, not a removal of jurisdiction over "any case involving or growing out of a labor dispute." Here, by contrast, the text says "[n]o court shall have jurisdiction over an action under this section." Whether the point was conceded or not, therefore, we may, and indeed must, decide *1407 whether Stone met the jurisdictional requirement of being an original source. III We turn to the first requirement of original-source status, that the relator have "direct and independent knowledge of the information on which the allegations are based." 31 U.S.C. § 3730(e)(4)(B). Because we have not previously addressed this provision, several preliminary questions require our attention. A First, does the phrase "information on which the allegations are based" refer to the information on which the relator's allegations are based or the information on which the publicly disclosed allegations that triggered the public-disclosure bar are based? The parties agree it is the former. See Brief for Petitioners 26, n. 13; Brief for United States 24, and n. 8; Brief for Respondent Stone 15, 21. But in view of our conclusion that § 3730(e)(4) is jurisdictional, we must satisfy ourselves that the parties' position is correct. Though the question is hardly free from doubt,[5] we agree that the "information" to which subparagraph (B) speaks is the information upon which the relators' allegations are based. To begin with, subparagraph (B) standing on its own suggests that disposition. The relator must have "direct and independent knowledge of the information on which the allegations are based," and he must "provid[e] the information to the Government before filing an action under this section which is based on the information." Surely the information one would expect a relator to "provide to the Government before filing an action ... based on the information" is the information underlying the relator's claims. Subparagraph (A) complicates matters. As described earlier, it bars actions based on the "public disclosure of allegations or transactions" and provides an exception for cases brought by "an original source of the information." If the allegations referred to in subparagraph (B)'s phrase requiring "direct and independent knowledge of the information on which the allegations are based," are the same "allegations" referred to in subparagraph (A), then original-source status would depend on knowledge of information underlying the publicly disclosed allegations. The principal textual difficulty with that interpretation is that subparagraph (A) does not speak simply of "allegations," but of "allegations or transactions." Had Congress wanted to link original-source status to information underlying the public disclosure, it would surely have used the identical phrase, "allegations or transactions"; there is no conceivable reason to require direct and independent knowledge of publicly disclosed allegations but not of publicly disclosed transactions. The sense of the matter offers strong additional support for this interpretation. Section 3730(e)(4)(A) bars actions based on publicly disclosed allegations whether or not the information on which those allegations are based has been made public. It is difficult to understand why Congress would care whether a relator knows about the information underlying a publicly disclosed allegation (e.g., what a confidential source told a newspaper reporter about *1408 insolid pondcrete) when the relator has direct and independent knowledge of different information supporting the same allegation (e.g., that a defective process would inevitably lead to insolid pondcrete). Not only would that make little sense, it would raise nettlesome procedural problems, placing courts in the position of comparing the relator's information with the often unknowable information on which the public disclosure was based. Where that latter information has not been disclosed (by reason, for example, of a reporter's desire to protect his source), the relator would presumably be out of court. To bar a relator with direct and independent knowledge of information underlying his allegations just because no one can know what information underlies the similar allegations of some other person simply makes no sense. The contrary conclusion of some lower courts rests on the following logic: The term "information" in subparagraph (B) must be read in tandem with the term "information" in subparagraph (A), and the term "information" in subparagraph (A) refers to the information on which the publicly disclosed allegations are based. See, e.g., United States ex rel. Laird v. Lockheed Martin Eng. & Science Servs. Co., 336 F.3d 346, 354 (C.A.5 2003). The major premise of this reasoning seems true enough: "information" in (A) and (B) means the same thing. The minor premise, however—that "information" in (A) refers to the information underlying the publicly disclosed allegations or transactions— is highly questionable. The complete phrase at issue is "unless ... the person bringing the action is an original source of the information." It seems to us more likely (in light of the analysis set forth above) that the information in question is the information underlying the action referred to a few words earlier, to-wit, the action "based upon the public disclosure of allegations or transactions" referred to at the beginning of the provision. On this interpretation, "information" in subparagraph (A) and "information on which the allegations are based" in subparagraph (B) are one and the same, viz., information underlying the allegations of the relator's action. B Having determined that the phrase "information on which the allegations are based" refers to the relator's allegations and not the publicly disclosed allegations, we confront more textual ambiguity: Which of the relator's allegations are the relevant ones? Stone's allegations changed during the course of the litigation, yet he asks that we look only to his original complaint. Rockwell argues that Stone must satisfy the original-source exception through all stages of the litigation. In our view, the term "allegations" is not limited to the allegations of the original complaint. It includes (at a minimum) the allegations in the original complaint as amended. The statute speaks not of the allegations in the "original complaint" (or even the allegations in the "complaint"), but of the relator's "allegations" simpliciter. Absent some limitation of § 3730(e)(4)'s requirement to the relator's initial complaint, we will not infer one. Such a limitation would leave the relator free to plead a trivial theory of fraud for which he had some direct and independent knowledge and later amend the complaint to include theories copied from the public domain or from materials in the Government's possession. Even the Government concedes that new allegations regarding a fundamentally different fraudulent scheme require reevaluation of the court's jurisdiction. See Brief for United States 40; Tr. of Oral Arg. 40. *1409 The rule that subject-matter jurisdiction "depends on the state of things at the time of the action brought," Mullan v. Torrance, 9 Wheat. 537, 539, 6 L. Ed. 154 (1824), does not suggest a different interpretation. The state of things and the originally alleged state of things are not synonymous; demonstration that the original allegations were false will defeat jurisdiction. Anderson v. Watt, 138 U.S. 694, 701, 11 S. Ct. 449, 34 L. Ed. 1078 (1891); Morris v. Gilmer, 129 U.S. 315, 326, 9 S. Ct. 289, 32 L. Ed. 690 (1889). So also will the withdrawal of those allegations, unless they are replaced by others that establish jurisdiction. Thus, when a plaintiff files a complaint in federal court and then voluntarily amends the complaint, courts look to the amended complaint to determine jurisdiction. See Wellness Community-Nat. v. Wellness House, 70 F.3d 46, 49 (C.A.7 1995); Boelens v. Redman Homes, Inc., 759 F.2d 504, 508 (C.A.5 1985).[6] Here, we have not only an amended complaint, but a final pretrial order that superseded all prior pleadings and "controll[ed] the subsequent course of the action," Fed. Rule Civ. Proc. 16(e). See Curtis v. Loether, 415 U.S. 189, 190, n. 1, 94 S. Ct. 1005, 39 L. Ed. 2d 260 (1974) (where a claim was not included in the complaint, but was included in the pretrial order, "it is irrelevant that the pleadings were never formally amended" (citing Fed. Rules Civ. Proc. 15(b), 16)); Wilson v. Muckala, 303 F.3d 1207, 1215 (C.A.10 2002) ("[C]laims, issues, defenses, or theories of damages not included in the pretrial order are waived even if they appeared in the complaint and, conversely, the inclusion of a claim in the pretrial order is deemed to amend any previous pleadings which did not include that claim"); Syrie v. Knoll Int'l, 748 F.2d 304, 308 (C.A.5 1984) ("[I]ncorporation of a[new] claim into the pre-trial order ... amends the previous pleadings to state [the new] claim"). In these circumstances, we look to the allegations as amended—here, the statement of claims in the final pretrial order—to determine original-source status. The Government objects that this approach risks driving a wedge between the Government and relators. It worries that future relators might decline to "acquiesc[e]" in the Government's tactical decision to narrow the claims in a case if that would eliminate jurisdiction with respect to the relator. Brief for United States 44. Even if this policy concern were valid, it would not induce us to determine jurisdiction on the basis of whether the relator is an original source of information underlying allegations that he no longer makes. IV Judged according to the principles set forth above, Stone's knowledge falls short. The only false claims ultimately found by the jury (and hence the only ones to which our jurisdictional inquiry is pertinent to the outcome) involved false statements with respect to environmental, safety, and health compliance over a one-and-a-half-year period between April 1, 1987, and September 30, 1988. As described by Stone and the Government in the final pretrial order, the only pertinent problem with respect to this period of time for *1410 which Stone claimed to have direct and independent knowledge was insolid pondcrete. Because Stone was no longer employed by Rockwell at the time, he did not know that the pondcrete was insolid; he did not know that pondcrete storage was even subject to RCRA; he did not know that Rockwell would fail to remedy the defect; he did not know that the insolid pondcrete leaked while being stored on-site; and, of course, he did not know that Rockwell made false statements to the Government regarding pondcrete storage. Stone's prediction that the pondcrete would be insolid because of a flaw in the piping system does not qualify as "direct and independent knowledge" of the pondcrete defect. Of course a qui tam relator's misunderstanding of why a concealed defect occurred would normally be immaterial as long as he knew the defect actually existed. But here Stone did not know that the pondcrete failed; he predicted it. Even if a prediction can qualify as direct and independent knowledge in some cases (a point we need not address), it assuredly does not do so when its premise of cause and effect is wrong. Stone's prediction was a failed prediction, disproved by Stone's own allegations. As Stone acknowledged, Rockwell was able to produce "concrete hard" pondcrete using the machinery Stone said was defective. According to respondents' allegations in the final pretrial order, the insolidity problem was caused by a new foreman's reduction of the cement-to-sludge ratio in the winter of 1986, long after Stone had left Rocky Flats. Stone counters that his original-source status with respect to his spray-irrigation claim (which related to a time period different from that for his pondcrete claim, App. 492) provided jurisdiction with respect to all of his claims. We disagree. Section 3730(e)(4) does not permit jurisdiction in gross just because a relator is an original source with respect to some claim. We, along with every court to have addressed the question, conclude that § 3730(e)(4) does not permit such claim smuggling. See United States ex rel. Merena v. SmithKline Beecham Corp., 205 F.3d 97, 102 (C.A.3 2000); Hays v. Hoffman, 325 F.3d 982, 990 (C.A.8 2003); Wang ex rel. United States v. FMC Corp., 975 F.2d 1412, 1415-1416, 1420 (C.A.9 1992). As then-Judge Alito explained, "[t]he plaintiffs decision to join all of his or her claims in a single lawsuit should not rescue claims that would have been doomed by section (e)(4) if they had been asserted in a separate action. And likewise, this joinder should not result in the dismissal of claims that would have otherwise survived." SmithKline Beecham, supra, at 102. Because Stone did not have direct and independent knowledge of the information upon which his allegations were based, we need not decide whether Stone met the second requirement of original-source status, that he have voluntarily provided the information to the Government before filing his action. V Respondents contend that even if Stone failed the original-source test as to his pondcrete allegations, the Government's intervention in his case provided an independent basis of jurisdiction. Section 3730(e)(4)(A) permits jurisdiction over an action based on publicly disclosed allegations or transactions if the action is "brought by the Attorney General." Respondents say that any inquiry into Stone's original-source status with respect to amendments to the complaint was unnecessary because the Government had intervened, making this an "action brought by *1411 the Attorney General."[7] Even assuming that Stone was an original source of allegations in his initial complaint, we reject respondents'"intervention" argument. The False Claims Act contemplates two types of actions. First, under § 3730(a), "[i]f the Attorney General finds that a person has violated or is violating section 3729, the Attorney General may bring a civil action under this section against the person." Second, under § 3730(b), "[a] person may bring an action for a violation of section 3729 for the person and for the United States Government." When a private person brings an action under § 3730(b), the Government may elect to "proceed with the action," § 3730(b)(4)(A), or it may "declin[e] to take over the action, in which case the person bringing the action shall have the right to conduct the action," § 3730(b)(4)(B). The statute thus draws a sharp distinction between actions brought by the Attorney General under § 3730(a) and actions brought by a private person under § 3730(b). An action brought by a private person does not become one brought by the Government just because the Government intervenes and elects to "proceed with the action." Section 3730 elsewhere refers to the Government's "proceed[ing] with an action brought by a person under subsection (b)" — which makes crystal clear the distinction between actions brought by the Government and actions brought by a relator where the Government intervenes but does not oust the relator. Does this conclusion cast into doubt the courts' jurisdiction with respect to the Government as well? After all, § 3730(e)(4)(A) bars jurisdiction over any action brought under § 3730, as this one was, unless the action is brought (1) by the Attorney General or (2) by an original source; and we have concluded that this is brought by neither. Not even petitioners have suggested the bizarre result that the Government's judgment must be set aside. It is readily enough avoided, as common sense suggests it must be, by holding that an action originally brought by a private person, which the Attorney General has joined, becomes an action brought by the Attorney General once the private person has been determined to lack the jurisdictional prerequisites for suit. The outcome would be similar to that frequently produced in diversity-jurisdiction cases, where the "courts of appeals . . . have the authority to cure a jurisdictional defect by dismissing a dispensable nondiverse party." Grupo Dataflux v. Atlas Global Group, L. P., 541 U.S. 567, 573, 124 S. Ct. 1920, 158 L. Ed. 2d 866 (2004) (citing Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 837, 109 S. Ct. 2218, 104 L. Ed. 2d 893 (1989)); see United States Steel Corp. v. EPA, 614 F.2d 843, 845 (C.A.3 1979) ("[T]here are instances when an intervenor's claim does not rise and fall with the claim of the original party"); 7C C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure § 1920, p. 491 (2d ed. 1986) ("[A]n intervenor can proceed to decision after a dismissal of the original action . . . if there are independent grounds for jurisdiction of the intervenor's claim"). What is cured here, by the jurisdictional ruling regarding Stone's claim, is the characterization of the action as one brought by an original source. The elimination of Stone leaves in place an action pursued only by the Attorney General, that can reasonably be regarded as being *1412 "brought" by him for purposes of § 3730(e)(4)(A). * * * We hold that the District Court lacked jurisdiction to enter judgment in favor of Stone. We reverse the Tenth Circuit's judgment to the contrary. It is so ordered. Justice BREYER took no part in the consideration or decision of this case.

The False Claims Act, eliminates federal-court jurisdiction over actions under 3730 of the Act that are based upon the public disclosure of allegations or transactions "unless the action is brought by the Attorney General or the person bringing the action is an original source of the information." 3730(e)(4)(A). We decide whether respondent James Stone was an original source. I The mixture of concrete and pond sludge that is the subject of this case has taken nearly two decades to seep, so to speak, into this Court. Given the long history and the complexity of this litigation, it is well to describe the facts in some detail. A From 1975 through petitioner Rockwell International Corp. was under a management and operating contract with the Department of Energy (DOE) to run the Rocky Flats nuclear weapons plant in Colorado. The most significant portion of Rockwell's compensation came in the form of a semiannual "`award fee,'" the amount of which depended on DOE's evaluation of Rockwell's performance in a number of areas, including environmental, safety, and health concerns. United States ex rel. From November 1980 through March 1986, James Stone worked as an engineer at the Rocky Flats plant. In the early 1980's, Rockwell explored the possibility of disposing of the toxic pond sludge that accumulated in solar evaporation ponds at the facility, by mixing it with cement. The idea was to pour the mixture into large rectangular boxes, where it would solidify into "pondcrete" blocks that could be stored onsite or transported to other sites for disposal. Stone reviewed a proposed manufacturing process for pondcrete in 1982. He concluded that the proposal "would not work," App. 175, and communicated that conclusion to Rockwell management in a *1402 written "Engineering Order." As Stone would later explain, he believed "the suggested process would result in an unstable mixture that would later deteriorate and cause unwanted release of toxic wastes to the environment." He believed this because he "foresaw that the piping system" that extracted sludge from the solar ponds "would not properly remove the sludge and would lead to an inadequate mixture of sludge/waste and cement such that the `pond crete' blocks would rapidly disintegrate thus creating additional contamination problems." Notwithstanding Stone's prediction, Rockwell proceeded with its pondcrete project and successfully manufactured "concrete hard" pondcrete during the period of Stone's employment at Rocky Flats. It was only after Stone was laid off in March 1986 that what the parties have called "insolid" pondcrete blocks were discovered. According to respondents, Rockwell knew by October 1986 that a substantial number of pondcrete blocks were insolid, but DOE did not become aware of the problem until May 1988, when several pondcrete blocks began to leak, leading to the discovery of thousands of other insolid blocks. The media reported these discoveries, 3 Appellants' App. in Nos. 99-1351, 99-1352, 99-1353 (CA10), pp. 889-38 to 889-39; and attributed the malfunction to Rockwell's reduction of the ratio of concrete to sludge in the mixture. In June more than a year after he had left Rockwell's employ, Stone went to the Federal Bureau of Investigation (FBI) with allegations of environmental crimes at Rocky Flats during the time of his employment. According to the court below, Stone alleged that "contrary to public knowledge, Rocky Flats accepted hazardous and nuclear waste from other DOE facilities; that Rockwell employees were `forbidden from discussing any controversies in front of a DOE employee'; that although Rocky Flats' fluid bed incinerators failed testing in 1981, the pilot incinerator remained on line and was used to incinerate wastes daily since 1981, including plutonium wastes which were then sent out for burial; that Rockwell distilled and fractionated various oils and solvents although the wastes were geared for incineration; that Stone believed that the ground water was contaminated from previous waste burial and land application, and that hazardous waste lagoons tended to overflow during and after `a good rain,' causing hazardous wastes to be discharged without first being treated." App. to Pet. for Cert. 4a. Stone provided the FBI with 2,300 pages of documents, buried among which was his 1982 engineering report predicting that the pondcrete-system design would not work. Stone did not discuss his pondcrete allegations with the FBI in their conversations.[1] Based in part on information allegedly learned from Stone, the Government obtained a search warrant for Rocky Flats, and on June 6, 75 FBI and Environmental Protection Agency agents raided the facility. The affidavit in support of the warrant included allegations (1) that pondcrete blocks were insolid "due to an inadequate waste-concrete mixture," App. 429, (2) that Rockwell obtained award fees based on its alleged "`excellent'" management of Rocky Flats, and (3) *1403 that Rockwell made false statements and concealed material facts in violation of the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. 6928, and 18 U.S.C. 1001. Newspapers published these allegations. In March Rockwell pleaded guilty to 10 environmental violations, including the knowing storage of insolid pondcrete blocks in violation of RCRA. Rockwell agreed to pay $18.5 million in fines. B In July Stone filed a qui tam suit under the False Claims Act.[2] That Act prohibits false or fraudulent claims for payment to the United States, 31 U.S.C. 3729(a), and authorizes civil actions to remedy such fraud to be brought by the Attorney General, 3730(a), or by private individuals in the Government's name, 3730(b)(1). The Act provides, however, that "[n]o court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information." 3730(e)(4)(A). An "original source" is "an individual who has direct and independent knowledge of the information on which the allegations are based and has voluntarily provided the information to the Government before filing an action under this section which is based on the information." 3730(e)(4)(B). Stone's complaint alleged that Rockwell was required to comply with certain federal and state environmental laws and regulations, including RCRA; that Rockwell committed numerous violations of these laws and regulations throughout the 1980's[3]; and that, in order to induce the Government to make payments or approvals under Rockwell's contract, Rockwell knowingly presented false and fraudulent claims to the Government in violation of the False Claims Act, 31 U.S.C. 3729(a). As required under the Act, Stone filed his complaint under seal and simultaneously delivered to the Government a confidential disclosure statement describing "substantially all material evidence and information" in his possession, 3730(b)(2). The statement identified 26 environmental and safety issues, only one of which involved pondcrete. With respect to that issue, Stone explained in his statement that he had reviewed the design for the pondcrete system and had foreseen that the piping mechanism would not properly remove the sludge, which in turn would lead to an inadequate mixture of sludge and cement. In December Rockwell moved to dismiss Stone's action for lack of subject-matter *1404 jurisdiction, arguing that the action was based on publicly disclosed allegations and that Stone was not an original source. The District Court denied the motion because, in its view, "Stone had direct and independent knowledge that Rockwell's compensation was linked to its compliance with environmental, health and safety regulations and that it allegedly concealed its deficient performance so that it would continue to receive payments." App. to Pet. for Cert. 61a. The Government initially declined to intervene in Stone's action, but later reversed course, and in November the District Court granted the Government's intervention. Several weeks later, at the suggestion of the District Court, the Government and Stone filed a joint amended complaint. As relevant here, the amended complaint alleged that Rockwell violated RCRA by storing leaky pondcrete blocks, but did not allege that any defect in the piping system (as predicted by Stone) caused insolid pondcrete.[4] Respondents clarified their allegations even further in a statement of claims which became part of the final pretrial order and which superseded their earlier pleadings. This said that the pondcrete's insolidity was due to "an incorrect cement/sludge ratio used in pondcrete operations, as well as due to inadequate process controls and inadequate inspection procedures." App. 470. It continued: "During the winter of 1986, Rockwell replaced its then pondcrete foreman, Norman Fryback, with Ron Teel. Teel increased pondcrete production rates in part by, among other things, reducing the amount of cement added to the blocks. Following the May 23, 1988 spill, Rockwell acknowledged that this reduced cement-to-sludge ratio was a major contributor to the existence of insufficiently solid pondcrete blocks on the storage pads." The statement of claims again did not mention the piping problem asserted by Stone years earlier. Respondents' False Claims Act claims went to trial in 1999. None of the witnesses Stone had identified during discovery as having relevant knowledge testified at trial. And none of the documents Stone provided to the Government with his confidential disclosure statement was introduced in evidence at trial. Nor did respondents allege at trial that the defect in the piping system predicted by Stone caused insolid pondcrete. To the contrary, during closing arguments both Stone's counsel and the Government's counsel repeatedly explained to the jury that the pondcrete failed because Rockwell's new foreman used an insufficient cement-to-sludge ratio in an effort to increase pondcrete production. The verdict form divided the False Claims Act count into several different claims corresponding to different award-fee periods. The jury found in favor of respondents for the three periods covering the pondcrete allegations (April 1, to September 30, 1988), and found for Rockwell as to the remaining periods. The jury awarded damages of $1,390,775.80, which the District Court trebled pursuant to 31 U.S.C. 3729(a). Rockwell filed a postverdict motion to dismiss Stone's claims under 3730(e)(4), arguing that the claims were based on publicly disclosed allegations and that Stone was not an original source. In response, *1405 Stone acknowledged that his successful claims were based on publicly disclosed allegations, but asserted original-source status. The District Court agreed with Stone. The United States Court of Appeals for the Tenth Circuit affirmed in relevant part, but remanded the case for the District Court to determine whether Stone had disclosed his information to the Government before filing his qui tam action, as 3730(e)(4)(B) required. On remand, the District Court found that Stone had produced the 1982 engineering order to the Government, but that the order was insufficient to communicate Stone's allegations. The District Court also found that Stone had not carried his burden of proving that he orally informed the FBI about his allegations before filing suit. On appeal, the Tenth Circuit disagreed with the District Court's conclusion and held (over the dissent of Judge Briscoe) that the 1982 engineering order sufficed to carry Stone's burden of persuasion. to decide whether Stone was an original source. II Section 3730(e)(4)(A) provides that "[n]o court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions in a criminal, civil, or administrative hearing, in a congressional, administrative, or Government Accounting Office report, hearing, audit, or investigation, or from the news media, unless the action is brought by the Attorney General or the person bringing the action is an original source of the information." (Footnote omitted.) As discussed above, 3730(e)(4)(B) defines "original source" as "an individual who [1] has direct and independent knowledge of the information on which the allegations are based and [2] has voluntarily provided the information to the Government before filing an action under this section which is based on the information." As this case comes to the Court, it is conceded that the claims on which Stone prevailed were based upon publicly disclosed allegations within the meaning of 3730(e)(4)(A). The question is whether Stone qualified under the original-source exception to the public-disclosure bar. We begin with the possibility that little analysis is required in this case, for Stone asserts that Rockwell conceded his original-source status. Rockwell responds that it conceded no such thing and that, even had it done so, the concession would have been irrelevant because 3730(e)(4) is jurisdictional. We agree with the latter proposition. It is true enough that the word "jurisdiction" does not in every context connote subject-matter jurisdiction. Noting that "jurisdiction" is "`a word of many, too many, meanings,'" we concluded in Steel that establishing the elements of an offense was not made a jurisdictional matter merely because the statute creating the cause of action was phrased as providing for "jurisdiction" over such suits. ). Here, however, the issue is not whether casting the creation of a cause of action in jurisdictional terms somehow limits the general grant of jurisdiction under which that cause of action would normally be brought, but rather whether a clear and explicit withdrawal of jurisdiction withdraws jurisdiction. It undoubtedly does so. Just last Term we stated that, "[i]f the Legislature clearly states that a threshold limitation on a statute's scope shall count as jurisdictional, the courts and litigants will be duly instructed *1406 and will not be left to wrestle with the issue." Here the jurisdictional nature of the original-source requirement is clear ex visceribus verborum. Indeed, we have already stated that 3730(e)(4) speaks to "the power of a particular court" as well as "the substantive rights of the parties." Hughes Aircraft Stone's contrary position rests entirely on dicta from a single Court of Appeals decision, see United States ex rel. Accudyne thought it significant that jurisdiction over False Claims Act cases is conferred by 28 U.S.C. 1331 and 1345 (the federal-question and United-States-as-plaintiff provisions of the Judicial Code) and 31 U.S.C. 3732(a) rather than 3730, which is the "section" referenced in 3730(e)(4). To eliminate jurisdiction, the court believed, it is those jurisdiction-conferring sections that would have to be referenced. We know of nothing in logic or authority to support this. The jurisdiction-removing provision here does not say "no court shall have jurisdiction under this section," but rather "no court shall have jurisdiction over an action under this section." That is surely the most natural way to achieve the desired result of eliminating jurisdiction over a category of False Claims Act actions—rather than listing all the conceivable provisions of the United States Code whose conferral of jurisdiction is being eliminated. (In addition to the provisions cited by the Accudyne court, one might also have to mention the diversity-jurisdiction provision, 28 U.S.C. 1332, and the supplemental-jurisdiction provision, 1367.) Accudyne next observed that the public-disclosure bar limits only who may speak for the United States on a subject and who if anyone gets a financial reward, not the "categories of disputes that may be resolved (a real `jurisdictional' limit)." But this is a classic begging of the question, which is precisely whether there has been removed from the courts' jurisdiction that category of disputes consisting of False Claims Act qui tam suits based on publicly disclosed allegations as to which the relator is not an original source of the information. Nothing prevents Congress from defining the "category" of excluded suits in any manner it wishes. See, e.g., 28 U.S.C. 1500 Lastly, Accudyne asserted that "the Supreme Court had held that a similar reference to jurisdiction in the Norris-LaGuardia Act, 29 U.S.C. 101, 104, limits remedies rather than subject-matter jurisdiction." ). But the language of the Norris-LaGuardia Act is in fact not similar. It provides that "[n]o court of the United States shall have jurisdiction to issue any restraining order or temporary or permanent injunction in any case involving or growing out of any labor dispute." 29 U.S.C. 104 It is facially a limitation upon the relief that can be accorded, not a removal of jurisdiction over "any case involving or growing out of a labor dispute." Here, by contrast, the text says "[n]o court shall have jurisdiction over an action under this section." Whether the point was conceded or not, therefore, we may, and indeed must, decide *1407 whether Stone met the jurisdictional requirement of being an original source. III We turn to the first requirement of original-source status, that the relator have "direct and independent knowledge of the information on which the allegations are based." 31 U.S.C. 3730(e)(4)(B). Because we have not previously addressed this provision, several preliminary questions require our attention. A First, does the phrase "information on which the allegations are based" refer to the information on which the relator's allegations are based or the information on which the publicly disclosed allegations that triggered the public-disclosure bar are based? The parties agree it is the former. See Brief for Petitioners 26, n. 13; Brief for United States 24, and n. 8; Brief for Respondent Stone 15, 21. But in view of our conclusion that 3730(e)(4) is jurisdictional, we must satisfy ourselves that the parties' position is correct. Though the question is hardly free from doubt,[5] we agree that the "information" to which subparagraph (B) speaks is the information upon which the relators' allegations are based. To begin with, subparagraph (B) standing on its own suggests that disposition. The relator must have "direct and independent knowledge of the information on which the allegations are based," and he must "provid[e] the information to the Government before filing an action under this section which is based on the information." Surely the information one would expect a relator to "provide to the Government before filing an action based on the information" is the information underlying the relator's claims. Subparagraph (A) complicates matters. As described earlier, it bars actions based on the "public disclosure of allegations or transactions" and provides an exception for cases brought by "an original source of the information." If the allegations referred to in subparagraph (B)'s phrase requiring "direct and independent knowledge of the information on which the allegations are based," are the same "allegations" referred to in subparagraph (A), then original-source status would depend on knowledge of information underlying the publicly disclosed allegations. The principal textual difficulty with that interpretation is that subparagraph (A) does not speak simply of "allegations," but of "allegations or transactions." Had Congress wanted to link original-source status to information underlying the public disclosure, it would surely have used the identical phrase, "allegations or transactions"; there is no conceivable reason to require direct and independent knowledge of publicly disclosed allegations but not of publicly disclosed transactions. The sense of the matter offers strong additional support for this interpretation. Section 3730(e)(4)(A) bars actions based on publicly disclosed allegations whether or not the information on which those allegations are based has been made public. It is difficult to understand why Congress would care whether a relator knows about the information underlying a publicly disclosed allegation (e.g., what a confidential source told a newspaper reporter about *1408 insolid pondcrete) when the relator has direct and independent knowledge of different information supporting the same allegation (e.g., that a defective process would inevitably lead to insolid pondcrete). Not only would that make little sense, it would raise nettlesome procedural problems, placing courts in the position of comparing the relator's information with the often unknowable information on which the public disclosure was based. Where that latter information has not been disclosed (by reason, for example, of a reporter's desire to protect his source), the relator would presumably be out of court. To bar a relator with direct and independent knowledge of information underlying his allegations just because no one can know what information underlies the similar allegations of some other person simply makes no sense. The contrary conclusion of some lower courts rests on the following logic: The term "information" in subparagraph (B) must be read in tandem with the term "information" in subparagraph (A), and the term "information" in subparagraph (A) refers to the information on which the publicly disclosed allegations are based. See, e.g., United States ex rel. The major premise of this reasoning seems true enough: "information" in (A) and (B) means the same thing. The minor premise, however—that "information" in (A) refers to the information underlying the publicly disclosed allegations or transactions— is highly questionable. The complete phrase at issue is "unless the person bringing the action is an original source of the information." It seems to us more likely (in light of the analysis set forth above) that the information in question is the information underlying the action referred to a few words earlier, to-wit, the action "based upon the public disclosure of allegations or transactions" referred to at the beginning of the provision. On this interpretation, "information" in subparagraph (A) and "information on which the allegations are based" in subparagraph (B) are one and the same, viz., information underlying the allegations of the relator's action. B Having determined that the phrase "information on which the allegations are based" refers to the relator's allegations and not the publicly disclosed allegations, we confront more textual ambiguity: Which of the relator's allegations are the relevant ones? Stone's allegations changed during the course of the litigation, yet he asks that we look only to his original complaint. Rockwell argues that Stone must satisfy the original-source exception through all stages of the litigation. In our view, the term "allegations" is not limited to the allegations of the original complaint. It includes (at a minimum) the allegations in the original complaint as amended. The statute speaks not of the allegations in the "original complaint" (or even the allegations in the "complaint"), but of the relator's "allegations" simpliciter. Absent some limitation of 3730(e)(4)'s requirement to the relator's initial complaint, we will not infer one. Such a limitation would leave the relator free to plead a trivial theory of fraud for which he had some direct and independent knowledge and later amend the complaint to include theories copied from the public domain or from materials in the Government's possession. Even the Government concedes that new allegations regarding a fundamentally different fraudulent scheme require reevaluation of the court's jurisdiction. See Brief for United States 40; Tr. of Oral Arg. 40. *1409 The rule that subject-matter jurisdiction "depends on the state of things at the time of the action brought," does not suggest a different interpretation. The state of things and the originally alleged state of things are not synonymous; demonstration that the original allegations were false will defeat jurisdiction. ; So also will the withdrawal of those allegations, unless they are replaced by others that establish jurisdiction. Thus, when a plaintiff files a complaint in federal court and then voluntarily amends the complaint, courts look to the amended complaint to determine jurisdiction. See Wellness ;[6] Here, we have not only an amended complaint, but a final pretrial order that superseded all prior pleadings and "controll[ed] the subsequent course of the action," Fed. Rule Civ. Proc. 16(e). See ; ; In these circumstances, we look to the allegations as amended—here, the statement of claims in the final pretrial order—to determine original-source status. The Government objects that this approach risks driving a wedge between the Government and relators. It worries that future relators might decline to "acquiesc[e]" in the Government's tactical decision to narrow the claims in a case if that would eliminate jurisdiction with respect to the relator. Brief for United States 44. Even if this policy concern were valid, it would not induce us to determine jurisdiction on the basis of whether the relator is an original source of information underlying allegations that he no longer makes. IV Judged according to the principles set forth above, Stone's knowledge falls short. The only false claims ultimately found by the jury (and hence the only ones to which our jurisdictional inquiry is pertinent to the outcome) involved false statements with respect to environmental, safety, and health compliance over a one-and-a-half-year period between April 1, and September 30, 1988. As described by Stone and the Government in the final pretrial order, the only pertinent problem with respect to this period of time for *1410 which Stone claimed to have direct and independent knowledge was insolid pondcrete. Because Stone was no longer employed by Rockwell at the time, he did not know that the pondcrete was insolid; he did not know that pondcrete storage was even subject to RCRA; he did not know that Rockwell would fail to remedy the defect; he did not know that the insolid pondcrete leaked while being stored on-site; and, of course, he did not know that Rockwell made false statements to the Government regarding pondcrete storage. Stone's prediction that the pondcrete would be insolid because of a flaw in the piping system does not qualify as "direct and independent knowledge" of the pondcrete defect. Of course a qui tam relator's misunderstanding of why a concealed defect occurred would normally be immaterial as long as he knew the defect actually existed. But here Stone did not know that the pondcrete failed; he predicted it. Even if a prediction can qualify as direct and independent knowledge in some cases (a point we need not address), it assuredly does not do so when its premise of cause and effect is wrong. Stone's prediction was a failed prediction, disproved by Stone's own allegations. As Stone acknowledged, Rockwell was able to produce "concrete hard" pondcrete using the machinery Stone said was defective. According to respondents' allegations in the final pretrial order, the insolidity problem was caused by a new foreman's reduction of the cement-to-sludge ratio in the winter of 1986, long after Stone had left Rocky Flats. Stone counters that his original-source status with respect to his spray-irrigation claim (which related to a time period different from that for his pondcrete claim, App. 2) provided jurisdiction with respect to all of his claims. We disagree. Section 3730(e)(4) does not permit jurisdiction in gross just because a relator is an original source with respect to some claim. We, along with every court to have addressed the question, conclude that 3730(e)(4) does not permit such claim smuggling. See United States ex rel. ; ; Wang ex rel. United As then-Judge Alito explained, "[t]he plaintiffs decision to join all of his or her claims in a single lawsuit should not rescue claims that would have been doomed by section (e)(4) if they had been asserted in a separate action. And likewise, this joinder should not result in the dismissal of claims that would have otherwise survived." SmithKline Beecham, at Because Stone did not have direct and independent knowledge of the information upon which his allegations were based, we need not decide whether Stone met the second requirement of original-source status, that he have voluntarily provided the information to the Government before filing his action. V Respondents contend that even if Stone failed the original-source test as to his pondcrete allegations, the Government's intervention in his case provided an independent basis of jurisdiction. Section 3730(e)(4)(A) permits jurisdiction over an action based on publicly disclosed allegations or transactions if the action is "brought by the Attorney General." Respondents say that any inquiry into Stone's original-source status with respect to amendments to the complaint was unnecessary because the Government had intervened, making this an "action brought by *1411 the Attorney General."[7] Even assuming that Stone was an original source of allegations in his initial complaint, we reject respondents'"intervention" argument. The False Claims Act contemplates two types of actions. First, under 3730(a), "[i]f the Attorney General finds that a person has violated or is violating section 3729, the Attorney General may bring a civil action under this section against the person." Second, under 3730(b), "[a] person may bring an action for a violation of section 3729 for the person and for the United States Government." When a private person brings an action under 3730(b), the Government may elect to "proceed with the action," 3730(b)(4)(A), or it may "declin[e] to take over the action, in which case the person bringing the action shall have the right to conduct the action," 3730(b)(4)(B). The statute thus draws a sharp distinction between actions brought by the Attorney General under 3730(a) and actions brought by a private person under 3730(b). An action brought by a private person does not become one brought by the Government just because the Government intervenes and elects to "proceed with the action." Section 3730 elsewhere refers to the Government's "proceed[ing] with an action brought by a person under subsection (b)" — which makes crystal clear the distinction between actions brought by the Government and actions brought by a relator where the Government intervenes but does not oust the relator. Does this conclusion cast into doubt the courts' jurisdiction with respect to the Government as well? After all, 3730(e)(4)(A) bars jurisdiction over any action brought under 3730, as this one was, unless the action is brought (1) by the Attorney General or (2) by an original source; and we have concluded that this is brought by neither. Not even petitioners have suggested the bizarre result that the Government's judgment must be set aside. It is readily enough avoided, as common sense suggests it must be, by holding that an action originally brought by a private person, which the Attorney General has joined, becomes an action brought by the Attorney General once the private person has been determined to lack the jurisdictional prerequisites for suit. The outcome would be similar to that frequently produced in diversity-jurisdiction cases, where the "courts of appeals have the authority to cure a jurisdictional defect by dismissing a dispensable nondiverse party." Grupo ); see United States Steel ; 7C C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure 1920, p. 1 (2d ed. 1986) ("[A]n intervenor can proceed to decision after a dismissal of the original action if there are independent grounds for jurisdiction of the intervenor's claim"). What is cured here, by the jurisdictional ruling regarding Stone's claim, is the characterization of the action as one brought by an original source. The elimination of Stone leaves in place an action pursued only by the Attorney General, that can reasonably be regarded as being *1412 "brought" by him for purposes of 3730(e)(4)(A). * * * We hold that the District Court lacked jurisdiction to enter judgment in favor of Stone. We reverse the Tenth Circuit's judgment to the contrary. It is so ordered. Justice BREYER took no part in the consideration or decision of this case.

Justice Stevens

dissenting

Rockwell Intern. Corp. v. United States

2007-03-27

https://www.courtlistener.com/opinion/145751/rockwell-intern-corp-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/145751/

2006-024

Any private citizen may bring an action to enforce the False Claims Act, 31 U.S.C. §§ 3729-3733, unless the information on which his allegations are based is already in the public domain. Even if the information is publicly available, however, the citizen may still sue if he was an "original source" of that information. § 3730(e)(4)(A) ("No court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions . . . unless the action is brought by the Attorney General or the person bringing the action is an original source of the information"). Because I believe the Court has misinterpreted these provisions to require that an "original source" in a qui tam action have knowledge of the actual facts underlying the allegations on which he may ultimately prevail, I respectfully dissent. In my view, a plain reading of the statute's provisions — specifically, §§ 3730(e)(4)(A) and (B) — makes clear that it is the information underlying the publicly disclosed allegations, not the information underlying the allegations in the relator's complaint (original or amended), of which the relator must be an original source.[1] Moreover, the statute's use of the article "an," rather than "the," in describing the original source indicates that the relator need not be the sole source of the information. By contrast, the majority's approach suggests that the relator must have knowledge of actual facts supporting the theory ultimately proven at trial — in other words, knowledge of the information underlying the prevailing claims. See ante, at 1409 (limiting the relevant jurisdictional inquiry to those "false claims ultimately found by the jury"). I disagree. Such a view is not supported by the statute, which requires only that the relator have "direct and independent knowledge" of the information on which the publicly disclosed allegations are based and that the relator provide such information to the Government in a timely manner. As I read the statute, the jurisdictional inquiry focuses on the facts in the public domain at the time the action is commenced. If the process of discovery leads to amended theories of recovery, amendments to the original complaint *1413 would not affect jurisdiction that was proper at the time of the original filing.[2] In this case, as the Court points out, the fact that Rockwell was storing thousands of insolid pondcrete blocks at the Rocky Flats facility had been publicly disclosed by the news media before Stone filed this lawsuit. Ante, at 1402, 1403. In my view, the record establishes that Stone was an original source of the allegations publicly disclosed by the media in June 1989, even though he thought that the deterioration of the pondcrete blocks would be caused by poor engineering rather than a poor formula for the mixture. The search warrant that was executed on June 6, 1989, and the Federal Bureau of Investigation (FBI) affidavit that was released to the news media on June 9, 1989, were both based, in part, on interviews with Stone and on information Stone had provided to the Government, including the 1982 Engineering Order. With respect to earlier media coverage of the pondcrete leakage discovery in May 1988, however, Stone's status as an original source is less obvious. Stone first went to the FBI with allegations of Rockwell's environmental violations in March 1986. App. 180. He subsequently met with several FBI agents over the course of several years. Id., at 180-182. During those meetings he provided the FBI with thousands of pages of documents, including the Engineering Order, in which he predicted that the pondcrete system design would not work. On the basis of that record, it seems likely that Stone (1) had "direct and independent knowledge of the information on which the [publicly disclosed] allegations [we]re based" and (2) voluntarily provided such information to the Government before filing suit. It is, however, his burden to establish that he did so. Because there has been no finding as to whether Stone was an original source as to those public disclosures, I would vacate and remand for a determination whether Stone was in fact an original source of the allegations publicly disclosed by the media in 1988 and 1989.

Any private citizen may bring an action to enforce the False Claims Act, unless the information on which his allegations are based is already in the public domain. Even if the information is publicly available, however, the citizen may still sue if he was an "original source" of that information. 3730(e)(4)(A) ("No court shall have jurisdiction over an action under this section based upon the public disclosure of allegations or transactions unless the action is brought by the Attorney General or the person bringing the action is an original source of the information"). Because I believe the Court has misinterpreted these provisions to require that an "original source" in a qui tam action have knowledge of the actual facts underlying the allegations on which he may ultimately prevail, I respectfully dissent. In my view, a plain reading of the statute's provisions — specifically, 3730(e)(4)(A) and (B) — makes clear that it is the information underlying the publicly disclosed allegations, not the information underlying the allegations in the relator's complaint (original or amended), of which the relator must be an original source.[1] Moreover, the statute's use of the article "an," rather than "the," in describing the original source indicates that the relator need not be the sole source of the information. By contrast, the majority's approach suggests that the relator must have knowledge of actual facts supporting the theory ultimately proven at trial — in other words, knowledge of the information underlying the prevailing claims. See ante, at 1409 (limiting the relevant jurisdictional inquiry to those "false claims ultimately found by the jury"). I disagree. Such a view is not supported by the statute, which requires only that the relator have "direct and independent knowledge" of the information on which the publicly disclosed allegations are based and that the relator provide such information to the Government in a timely manner. As I read the statute, the jurisdictional inquiry focuses on the facts in the public domain at the time the action is commenced. If the process of discovery leads to amended theories of recovery, amendments to the original complaint *1413 would not affect jurisdiction that was proper at the time of the original filing.[2] In this case, as the Court points out, the fact that Rockwell was storing thousands of insolid pondcrete blocks at the Rocky Flats facility had been publicly disclosed by the news media before Stone filed this lawsuit. Ante, at 1402, 1403. In my view, the record establishes that Stone was an original source of the allegations publicly disclosed by the media in June 1989, even though he thought that the deterioration of the pondcrete blocks would be caused by poor engineering rather than a poor formula for the mixture. The search warrant that was executed on June 6, 1989, and the Federal Bureau of Investigation (FBI) affidavit that was released to the news media on June 9, 1989, were both based, in part, on interviews with Stone and on information Stone had provided to the Government, including the 1982 Engineering Order. With respect to earlier media coverage of the pondcrete leakage discovery in May 1988, however, Stone's status as an original source is less obvious. Stone first went to the FBI with allegations of Rockwell's environmental violations in March 1986. App. 180. He subsequently met with several FBI agents over the course of several years. During those meetings he provided the FBI with thousands of pages of documents, including the Engineering Order, in which he predicted that the pondcrete system design would not work. On the basis of that record, it seems likely that Stone (1) had "direct and independent knowledge of the information on which the [publicly disclosed] allegations [we]re based" and (2) voluntarily provided such information to the Government before filing suit. It is, however, his burden to establish that he did so. Because there has been no finding as to whether Stone was an original source as to those public disclosures, I would vacate and remand for a determination whether Stone was in fact an original source of the allegations publicly disclosed by the media in 1988 and 1989.

Justice O'Connor

majority

Ewing v. California

2003-03-05

https://www.courtlistener.com/opinion/127897/ewing-v-california/

https://www.courtlistener.com/api/rest/v3/clusters/127897/

2002-028

In this case, we decide whether the Eighth Amendment prohibits the State of California from sentencing a repeat felon to a prison term of 25 years to life under the State's "Three Strikes and You're Out" law. I A California's three strikes law reflects a shift in the State's sentencing policies toward incapacitating and deterring repeat offenders who threaten the public safety. The law was designed "to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses." Cal. Penal Code Ann. § 667(b) (West 1999). On March 3, 1993, California Assemblymen Bill Jones and Jim Costa introduced Assembly Bill 971, the legislative version of what would later become the three strikes law. The Assembly Committee on Public Safety defeated the bill only weeks later. Public outrage over the defeat sparked a voter initiative to add Proposition 184, based loosely on the bill, to the ballot in the November 1994 general election. On October 1, 1993, while Proposition 184 was circulating, 12-year-old Polly Klaas was kidnaped from her home in Petaluma, California. Her admitted killer, Richard Allen Davis, had a long criminal history that included two prior kidnaping convictions. Davis had served only half of his *15 most recent sentence (16 years for kidnaping, assault, and burglary). Had Davis served his entire sentence, he would still have been in prison on the day that Polly Klaas was kidnaped. Polly Klaas' murder galvanized support for the three strikes initiative. Within days, Proposition 184 was on its way to becoming the fastest qualifying initiative in California history. On January 3, 1994, the sponsors of Assembly Bill 971 resubmitted an amended version of the bill that conformed to Proposition 184. On January 31, 1994, Assembly Bill 971 passed the Assembly by a 63 to 9 margin. The Senate passed it by a 29 to 7 margin on March 3, 1994. Governor Pete Wilson signed the bill into law on March 7, 1994. California voters approved Proposition 184 by a margin of 72 to 28 percent on November 8, 1994. California thus became the second State to enact a three strikes law. In November 1993, the voters of Washington State approved their own three strikes law, Initiative 593, by a margin of 3 to 1. U. S. Dept. of Justice, National Institute of Justice, J. Clark, J. Austin, & D. Henry, "Three Strikes and You're Out": A Review of State Legislation 1 (Sept. 1997) (hereinafter Review of State Legislation). Between 1993 and 1995, 24 States and the Federal Government enacted three strikes laws. Ibid. Though the three strikes laws vary from State to State, they share a common goal of protecting the public safety by providing lengthy prison terms for habitual felons. B California's current three strikes law consists of two virtually identical statutory schemes "designed to increase the prison terms of repeat felons." People v. Superior Court of San Diego Cty. ex rel. Romero, 13 Cal. 4th 497, 504, 917 P.2d 628, 630 (1996) (Romero). When a defendant is convicted of a felony, and he has previously been convicted of one or more prior felonies defined as "serious" or "violent" in Cal. Penal Code Ann. §§ 667.5 and 1192.7 (West Supp. 2002), sentencing *16 is conducted pursuant to the three strikes law. Prior convictions must be alleged in the charging document, and the defendant has a right to a jury determination that the prosecution has proved the prior convictions beyond a reasonable doubt. § 1025; § 1158 (West 1985). If the defendant has one prior "serious" or "violent" felony conviction, he must be sentenced to "twice the term otherwise provided as punishment for the current felony conviction." § 667(e)(1) (West 1999); § 1170.12(c)(1) (West Supp. 2002). If the defendant has two or more prior "serious" or "violent" felony convictions, he must receive "an indeterminate term of life imprisonment." § 667(e)(2)(A) (West 1999); § 1170.12(c)(2)(A) (West Supp. 2002). Defendants sentenced to life under the three strikes law become eligible for parole on a date calculated by reference to a "minimum term," which is the greater of (a) three times the term otherwise provided for the current conviction, (b) 25 years, or (c) the term determined by the court pursuant to § 1170 for the underlying conviction, including any enhancements. §§ 667(e)(2)(A)(i)-(iii) (West 1999); §§ 1170.12(c)(2)(A)(i)-(iii) (West Supp. 2002). Under California law, certain offenses may be classified as either felonies or misdemeanors. These crimes are known as "wobblers." Some crimes that would otherwise be misdemeanors become "wobblers" because of the defendant's prior record. For example, petty theft, a misdemeanor, becomes a "wobbler" when the defendant has previously served a prison term for committing specified theft-related crimes. § 490 (West 1999); § 666 (West Supp. 2002). Other crimes, such as grand theft, are "wobblers" regardless of the defendant's prior record. See § 489(b) (West 1999). Both types of "wobblers" are triggering offenses under the three strikes law only when they are treated as felonies. Under California law, a "wobbler" is presumptively a felony and "remains a felony except when the discretion is actually exercised" to make the crime a misdemeanor. People v. Williams, *17 27 Cal. 2d 220, 229, 163 P.2d 692, 696 (1945) (emphasis deleted and internal quotation marks omitted). In California, prosecutors may exercise their discretion to charge a "wobbler" as either a felony or a misdemeanor. Likewise, California trial courts have discretion to reduce a "wobbler" charged as a felony to a misdemeanor either before preliminary examination or at sentencing to avoid imposing a three strikes sentence. Cal. Penal Code Ann. §§ 17(b)(5), 17(b)(1) (West 1999); People v. Superior Court of Los Angeles Cty. ex rel. Alvarez, 14 Cal. 4th 968, 978, 928 P.2d 1171, 1177-1178 (1997). In exercising this discretion, the court may consider "those factors that direct similar sentencing decisions," such as "the nature and circumstances of the offense, the defendant's appreciation of and attitude toward the offense,... [and] the general objectives of sentencing." Ibid. (internal quotation marks and citations omitted). California trial courts can also vacate allegations of prior "serious" or "violent" felony convictions, either on motion by the prosecution or sua sponte. Romero, supra, at 529-530, 917 P.2d, at 647-648. In ruling whether to vacate allegations of prior felony convictions, courts consider whether, "in light of the nature and circumstances of [the defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [three strikes'] scheme's spirit, in whole or in part." People v. Williams, 17 Cal. 4th 148, 161, 948 P.2d 429, 437 (1998). Thus, trial courts may avoid imposing a three strikes sentence in two ways: first, by reducing "wobblers" to misdemeanors (which do not qualify as triggering offenses), and second, by vacating allegations of prior "serious" or "violent" felony convictions. C On parole from a 9-year prison term, petitioner Gary Ewing walked into the pro shop of the El Segundo Golf *18 Course in Los Angeles County on March 12, 2000. He walked out with three golf clubs, priced at $399 apiece, concealed in his pants leg. A shop employee, whose suspicions were aroused when he observed Ewing limp out of the pro shop, telephoned the police. The police apprehended Ewing in the parking lot. Ewing is no stranger to the criminal justice system. In 1984, at the age of 22, he pleaded guilty to theft. The court sentenced him to six months in jail (suspended), three years' probation, and a $300 fine. In 1988, he was convicted of felony grand theft auto and sentenced to one year in jail and three years' probation. After Ewing completed probation, however, the sentencing court reduced the crime to a misdemeanor, permitted Ewing to withdraw his guilty plea, and dismissed the case. In 1990, he was convicted of petty theft with a prior and sentenced to 60 days in the county jail and three years' probation. In 1992, Ewing was convicted of battery and sentenced to 30 days in the county jail and two years' summary probation. One month later, he was convicted of theft and sentenced to 10 days in the county jail and 12 months' probation. In January 1993, Ewing was convicted of burglary and sentenced to 60 days in the county jail and one year's summary probation. In February 1993, he was convicted of possessing drug paraphernalia and sentenced to six months in the county jail and three years' probation. In July 1993, he was convicted of appropriating lost property and sentenced to 10 days in the county jail and two years' summary probation. In September 1993, he was convicted of unlawfully possessing a firearm and trespassing and sentenced to 30 days in the county jail and one year's probation. In October and November 1993, Ewing committed three burglaries and one robbery at a Long Beach, California, apartment complex over a 5-week period. He awakened one of his victims, asleep on her living room sofa, as he tried to disconnect her video cassette recorder from the television in *19 that room. When she screamed, Ewing ran out the front door. On another occasion, Ewing accosted a victim in the mailroom of the apartment complex. Ewing claimed to have a gun and ordered the victim to hand over his wallet. When the victim resisted, Ewing produced a knife and forced the victim back to the apartment itself. While Ewing rifled through the bedroom, the victim fled the apartment screaming for help. Ewing absconded with the victim's money and credit cards. On December 9, 1993, Ewing was arrested on the premises of the apartment complex for trespassing and lying to a police officer. The knife used in the robbery and a glass cocaine pipe were later found in the back seat of the patrol car used to transport Ewing to the police station. A jury convicted Ewing of first-degree robbery and three counts of residential burglary. Sentenced to nine years and eight months in prison, Ewing was paroled in 1999. Only 10 months later, Ewing stole the golf clubs at issue in this case. He was charged with, and ultimately convicted of, one count of felony grand theft of personal property in excess of $400. See Cal. Penal Code Ann. § 484 (West Supp. 2002); § 489 (West 1999). As required by the three strikes law, the prosecutor formally alleged, and the trial court later found, that Ewing had been convicted previously of four serious or violent felonies for the three burglaries and the robbery in the Long Beach apartment complex. See § 667(g) (West 1999); § 1170.12(e) (West Supp. 2002). At the sentencing hearing, Ewing asked the court to reduce the conviction for grand theft, a "wobbler" under California law, to a misdemeanor so as to avoid a three strikes sentence. See §§ 17(b), 667(d)(1) (West 1999); § 1170.12(b)(1) (West Supp. 2002). Ewing also asked the trial court to exercise its discretion to dismiss the allegations of some or all of his prior serious or violent felony convictions, again for purposes of avoiding a three strikes sentence. See Romero, 13 Cal. 4th, at 529-531, 917 P.2d, at 647-648. Before sentencing *20 Ewing, the trial court took note of his entire criminal history, including the fact that he was on parole when he committed his latest offense. The court also heard arguments from defense counsel and a plea from Ewing himself. In the end, the trial judge determined that the grand theft should remain a felony. The court also ruled that the four prior strikes for the three burglaries and the robbery in Long Beach should stand. As a newly convicted felon with two or more "serious" or "violent" felony convictions in his past, Ewing was sentenced under the three strikes law to 25 years to life. The California Court of Appeal affirmed in an unpublished opinion. No. B143745 (Apr. 25, 2001). Relying on our decision in Rummel v. Estelle, 445 U.S. 263 (1980), the court rejected Ewing's claim that his sentence was grossly disproportionate under the Eighth Amendment. Enhanced sentences under recidivist statutes like the three strikes law, the court reasoned, serve the "legitimate goal" of deterring and incapacitating repeat offenders. The Supreme Court of California denied Ewing's petition for review, and we granted certiorari, 535 U.S. 969 (2002). We now affirm. II A The Eighth Amendment, which forbids cruel and unusual punishments, contains a "narrow proportionality principle" that "applies to noncapital sentences." Harmelin v. Michigan, 501 U.S. 957, 996-997 (1991) (KENNEDY, J., concurring in part and concurring in judgment); cf. Weems v. United States, 217 U.S. 349, 371 (1910); Robinson v. California, 370 U.S. 660, 667 (1962) (applying the Eighth Amendment to the States via the Fourteenth Amendment). We have most recently addressed the proportionality principle as applied to terms of years in a series of cases beginning with Rummel v. Estelle, supra. *21 In Rummel, we held that it did not violate the Eighth Amendment for a State to sentence a three-time offender to life in prison with the possibility of parole. Id., at 284-285. Like Ewing, Rummel was sentenced to a lengthy prison term under a recidivism statute. Rummel's two prior offenses were a 1964 felony for "fraudulent use of a credit card to obtain $80 worth of goods or services," and a 1969 felony conviction for "passing a forged check in the amount of $28.36." Id., at 265. His triggering offense was a conviction for felony theft — "obtaining $120.75 by false pretenses." Id., at 266. This Court ruled that "[h]aving twice imprisoned him for felonies, Texas was entitled to place upon Rummel the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State." Id., at 284. The recidivism statute "is nothing more than a societal decision that when such a person commits yet another felony, he should be subjected to the admittedly serious penalty of incarceration for life, subject only to the State's judgment as to whether to grant him parole." Id., at 278. We noted that this Court "has on occasion stated that the Eighth Amendment prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime." Id., at 271. But "[o]utside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare." Id., at 272. Although we stated that the proportionality principle "would ... come into play in the extreme example ... if a legislature made overtime parking a felony punishable by life imprisonment," id., at 274, n. 11, we held that "the mandatory life sentence imposed upon this petitioner does not constitute cruel and unusual punishment under the Eighth and Fourteenth Amendments," id., at 285. In Hutto v. Davis, 454 U.S. 370 (1982) (per curiam), the defendant was sentenced to two consecutive terms of 20 years in prison for possession with intent to distribute nine *22 ounces of marijuana and distribution of marijuana. We held that such a sentence was constitutional: "In short, Rummel stands for the proposition that federal courts should be reluctant to review legislatively mandated terms of imprisonment, and that successful challenges to the proportionality of particular sentences should be exceedingly rare." Id., at 374 (citations and internal quotation marks omitted). Three years after Rummel, in Solem v. Helm, 463 U.S. 277, 279 (1983), we held that the Eighth Amendment prohibited "a life sentence without possibility of parole for a seventh nonviolent felony." The triggering offense in Solem was "uttering a `no account' check for $100." Id., at 281. We specifically stated that the Eighth Amendment's ban on cruel and unusual punishments "prohibits ... sentences that are disproportionate to the crime committed," and that the "constitutional principle of proportionality has been recognized explicitly in this Court for almost a century." Id., at 284, 286. The Solem Court then explained that three factors may be relevant to a determination of whether a sentence is so disproportionate that it violates the Eighth Amendment: "(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." Id., at 292. Applying these factors in Solem, we struck down the defendant's sentence of life without parole. We specifically noted the contrast between that sentence and the sentence in Rummel, pursuant to which the defendant was eligible for parole. 463 U.S., at 297; see also id., at 300 ("[T]he South Dakota commutation system is fundamentally different from the parole system that was before us in Rummel"). Indeed, we explicitly declined to overrule Rummel: "[O]ur conclusion today is not inconsistent with Rummel v. Estelle." 463 U.S., at 303, n. 32; see also id., at 288, n. 13 ("[O]ur decision *23 is entirely consistent with this Court's prior cases — including Rummel v. Estelle"). Eight years after Solem, we grappled with the proportionality issue again in Harmelin. Harmelin was not a recidivism case, but rather involved a first-time offender convicted of possessing 672 grams of cocaine. He was sentenced to life in prison without possibility of parole. A majority of the Court rejected Harmelin's claim that his sentence was so grossly disproportionate that it violated the Eighth Amendment. The Court, however, could not agree on why his proportionality argument failed. JUSTICE SCALIA, joined by THE CHIEF JUSTICE, wrote that the proportionality principle was "an aspect of our death penalty jurisprudence, rather than a generalizable aspect of Eighth Amendment law." 501 U.S. at 994. He would thus have declined to apply gross disproportionality principles except in reviewing capital sentences. Ibid. JUSTICE KENNEDY, joined by two other Members of the Court, concurred in part and concurred in the judgment. JUSTICE KENNEDY specifically recognized that "[t]he Eighth Amendment proportionality principle also applies to noncapital sentences." Id., at 997. He then identified four principles of proportionality review — "the primacy of the legislature, the variety of legitimate penological schemes, the nature of our federal system, and the requirement that proportionality review be guided by objective factors" — that "inform the final one: The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are `grossly disproportionate' to the crime." Id., at 1001 (citing Solem, supra, at 288). JUSTICE KENNEDY's concurrence also stated that Solem "did not mandate" comparative analysis "within and between jurisdictions." 501 U.S., at 1004-1005. The proportionality principles in our cases distilled in JUSTICE KENNEDY's concurrence guide our application of the *24 Eighth Amendment in the new context that we are called upon to consider. B For many years, most States have had laws providing for enhanced sentencing of repeat offenders. See, e. g., U. S. Dept. of Justice, Bureau of Justice Assistance, National Assessment of Structured Sentencing (1996). Yet between 1993 and 1995, three strikes laws effected a sea change in criminal sentencing throughout the Nation.[1] These laws responded to widespread public concerns about crime by targeting the class of offenders who pose the greatest threat to public safety: career criminals. As one of the chief architects of California's three strikes law has explained: "Three Strikes was intended to go beyond simply making sentences tougher. It was intended to be a focused effort to create a sentencing policy that would use the judicial system to reduce serious and violent crime." Ardaiz, California's Three Strikes Law: History, Expectations, Consequences, 32 McGeorge L. Rev. 1, 12 (2000) (hereinafter Ardaiz). Throughout the States, legislatures enacting three strikes laws made a deliberate policy choice that individuals who have repeatedly engaged in serious or violent criminal behavior, and whose conduct has not been deterred by more conventional approaches to punishment, must be isolated from society in order to protect the public safety. Though three strikes laws may be relatively new, our tradition of deferring to state legislatures in making and implementing such important policy decisions is longstanding. Weems, 217 U. S., at 379; Gore v. United States, 357 U.S. 386, 393 *25 (1958); Payne v. Tennessee, 501 U.S. 808, 824 (1991); Rummel, 445 U. S., at 274; Solem, 463 U. S., at 290; Harmelin, 501 U. S., at 998 (KENNEDY, J., concurring in part and concurring in judgment). Our traditional deference to legislative policy choices finds a corollary in the principle that the Constitution "does not mandate adoption of any one penological theory." Id., at 999 (KENNEDY, J., concurring in part and concurring in judgment). A sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation. See 1 W. LaFave & A. Scott, Substantive Criminal Law § 1.5, pp. 30-36 (1986) (explaining theories of punishment). Some or all of these justifications may play a role in a State's sentencing scheme. Selecting the sentencing rationales is generally a policy choice to be made by state legislatures, not federal courts. When the California Legislature enacted the three strikes law, it made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. Nothing in the Eighth Amendment prohibits California from making that choice. To the contrary, our cases establish that "States have a valid interest in deterring and segregating habitual criminals." Parke v. Raley, 506 U.S. 20, 27 (1992); Oyler v. Boles, 368 U.S. 448, 451 (1962) ("[T]he constitutionality of the practice of inflicting severer criminal penalties upon habitual offenders is no longer open to serious challenge"). Recidivism has long been recognized as a legitimate basis for increased punishment. See Almendarez-Torres v. United States, 523 U.S. 224, 230 (1998) (recidivism "is as typical a sentencing factor as one might imagine"); Witte v. United States, 515 U.S. 389, 400 (1995) ("In repeatedly upholding such recidivism statutes, we have rejected double jeopardy challenges because the enhanced punishment imposed for the later offense ... [is] `a stiffened penalty for the latest crime, which is considered to be an aggravated *26 offense because a repetitive one'" (quoting Gryger v. Burke, 334 U.S. 728, 732 (1948))). California's justification is no pretext. Recidivism is a serious public safety concern in California and throughout the Nation. According to a recent report, approximately 67 percent of former inmates released from state prisons were charged with at least one "serious" new crime within three years of their release. See U. S. Dept. of Justice, Bureau of Justice Statistics, P. Langan & D. Levin, Special Report: Recidivism of Prisoners Released in 1994, p. 1 (June 2002). In particular, released property offenders like Ewing had higher recidivism rates than those released after committing violent, drug, or public-order offenses. Id., at 8. Approximately 73 percent of the property offenders released in 1994 were arrested again within three years, compared to approximately 61 percent of the violent offenders, 62 percent of the public-order offenders, and 66 percent of the drug offenders. Ibid. In 1996, when the Sacramento Bee studied 233 three strikes offenders in California, it found that they had an aggregate of 1,165 prior felony convictions, an average of 5 apiece. See Furillo, Three Strikes — The Verdict: Most Offenders Have Long Criminal Histories, Sacramento Bee, Mar. 31, 1996, p. A1. The prior convictions included 322 robberies and 262 burglaries. Ibid. About 84 percent of the 233 three strikes offenders had been convicted of at least one violent crime. Ibid. In all, they were responsible for 17 homicides, 7 attempted slayings, and 91 sexual assaults and child molestations. Ibid. The Sacramento Bee concluded, based on its investigation, that "[i]n the vast majority of the cases, regardless of the third strike, the [three strikes] law is snaring [the] long-term habitual offenders with multiple felony convictions...." Ibid. The State's interest in deterring crime also lends some support to the three strikes law. We have long viewed both incapacitation and deterrence as rationales for recidivism *27 statutes: "[A] recidivist statute['s] ... primary goals are to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time." Rummel, supra, at 284. Four years after the passage of California's three strikes law, the recidivism rate of parolees returned to prison for the commission of a new crime dropped by nearly 25 percent. California Dept. of Justice, Office of the Attorney General, "Three Strikes and You're Out" — Its Impact on the California Criminal Justice System After Four Years, p. 10 (1998). Even more dramatically: "An unintended but positive consequence of `Three Strikes' has been the impact on parolees leaving the state. More California parolees are now leaving the state than parolees from other jurisdictions entering California. This striking turnaround started in 1994. It was the first time more parolees left the state than entered since 1976. This trend has continued and in 1997 more than 1,000 net parolees left California." Ibid. See also Janiskee & Erler, Crime, Punishment, and Romero: An Analysis of the Case Against California's Three Strikes Law, 39 Duquesne L. Rev. 43, 45-46 (2000) ("Prosecutors in Los Angeles routinely report that `felons tell them they are moving out of the state because they fear getting a second or third strike for a nonviolent offense'" (quoting Sanchez, A Movement Builds Against "Three Strikes" Law, Washington Post, Feb. 18, 2000, p. A3)). To be sure, California's three strikes law has sparked controversy. Critics have doubted the law's wisdom, cost-efficiency, and effectiveness in reaching its goals. See, e. g., Zimring, Hawkins, & Kamin, Punishment and Democracy: Three Strikes and You're Out in California (2001); Vitiello, Three Strikes: Can We Return to Rationality? 87 J. Crim. *28 L. & C. 395, 423 (1997). This criticism is appropriately directed at the legislature, which has primary responsibility for making the difficult policy choices that underlie any criminal sentencing scheme. We do not sit as a "superlegislature" to second-guess these policy choices. It is enough that the State of California has a reasonable basis for believing that dramatically enhanced sentences for habitual felons "advance[s] the goals of [its] criminal justice system in any substantial way." See Solem, 463 U. S., at 297, n. 22. III Against this backdrop, we consider Ewing's claim that his three strikes sentence of 25 years to life is unconstitutionally disproportionate to his offense of "shoplifting three golf clubs." Brief for Petitioner 6. We first address the gravity of the offense compared to the harshness of the penalty. At the threshold, we note that Ewing incorrectly frames the issue. The gravity of his offense was not merely "shoplifting three golf clubs." Rather, Ewing was convicted of felony grand theft for stealing nearly $1,200 worth of merchandise after previously having been convicted of at least two "violent" or "serious" felonies. Even standing alone, Ewing's theft should not be taken lightly. His crime was certainly not "one of the most passive felonies a person could commit." Solem, supra, at 296 (internal quotation marks omitted). To the contrary, the Supreme Court of California has noted the "seriousness" of grand theft in the context of proportionality review. See In re Lynch, 8 Cal. 3d 410, 432, n. 20, 503 P.2d 921, 936, n. 20 (1972). Theft of $1,200 in property is a felony under federal law, 18 U.S. C. § 641, and in the vast majority of States. See App. B to Brief for Petitioner 21a. That grand theft is a "wobbler" under California law is of no moment. Though California courts have discretion to reduce a felony grand theft charge to a misdemeanor, it remains a felony for all purposes "unless and until the trial *29 court imposes a misdemeanor sentence." In re Anderson, 69 Cal. 2d 613, 626, 447 P.2d 117, 126 (1968) (Tobriner, J., concurring); see generally 1 B. Witkin & N. Epstein, California Criminal Law § 73 (3d ed. 2000). "The purpose of the trial judge's sentencing discretion" to downgrade certain felonies is to "impose a misdemeanor sentence in those cases in which the rehabilitation of the convicted defendant either does not require, or would be adversely affected by, incarceration in a state prison as a felon." Anderson, supra, at 664-665, 447 P.2d, at 152 (Tobriner, J., concurring). Under California law, the reduction is not based on the notion that a "wobbler" is "conceptually a misdemeanor." Necochea v. Superior Court, 23 Cal. App. 3d 1012, 1016, 100 Cal. Rptr. 693, 695 (1972). Rather, it is "intended to extend misdemeanant treatment to a potential felon." Ibid. In Ewing's case, however, the trial judge justifiably exercised her discretion not to extend such lenient treatment given Ewing's long criminal history. In weighing the gravity of Ewing's offense, we must place on the scales not only his current felony, but also his long history of felony recidivism. Any other approach would fail to accord proper deference to the policy judgments that find expression in the legislature's choice of sanctions. In imposing a three strikes sentence, the State's interest is not merely punishing the offense of conviction, or the "triggering" offense: "[I]t is in addition the interest ... in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law." Rummel, 445 U. S., at 276; Solem, supra, at 296. To give full effect to the State's choice of this legitimate penological goal, our proportionality review of Ewing's sentence must take that goal into account. Ewing's sentence is justified by the State's public-safety interest in incapacitating and deterring recidivist felons, and *30 amply supported by his own long, serious criminal record.[2] Ewing has been convicted of numerous misdemeanor and felony offenses, served nine separate terms of incarceration, and committed most of his crimes while on probation or parole. His prior "strikes" were serious felonies including robbery and three residential burglaries. To be sure, Ewing's sentence is a long one. But it reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated. The State of California "was entitled to place upon [Ewing] the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State." Rummel, supra, at 284. Ewing's is not "the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." Harmelin, 501 U. S., at 1005 (KENNEDY, J., concurring in part and concurring in judgment). We hold that Ewing's sentence of 25 years to life in prison, imposed for the offense of felony grand theft under the three strikes law, is not grossly disproportionate and therefore does not violate the Eighth Amendment's prohibition on *31 cruel and unusual punishments. The judgment of the California Court of Appeal is affirmed. It is so ordered. JUSTICE SCALIA, concurring in the judgment.

In this case, we decide whether the Eighth Amendment prohibits the State of California from sentencing a repeat felon to a prison term of 25 years to life under the State's "Three Strikes and You're Out" law. I A California's three strikes law reflects a shift in the State's sentencing policies toward incapacitating and deterring repeat offenders who threaten the public safety. The law was designed "to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses." Cal. Penal Code Ann. (b) (West 1999). On March 3, 1993, California Assemblymen Bill Jones and Jim Costa introduced Assembly Bill 971, the legislative version of what would later become the three strikes law. The Assembly Committee on Public Safety defeated the bill only weeks later. Public outrage over the defeat sparked a voter initiative to add Proposition 184, based loosely on the bill, to the ballot in the November 1994 general election. On October 1, 1993, while Proposition 184 was circulating, -year-old Polly Klaas was kidnaped from her home in Petaluma, California. Her admitted killer, Richard Allen Davis, had a long criminal history that included two prior kidnaping convictions. Davis had served only half of his *15 most recent sentence (16 years for kidnaping, assault, and burglary). Had Davis served his entire sentence, he would still have been in prison on the day that Polly Klaas was kidnaped. Polly Klaas' murder galvanized support for the three strikes initiative. Within days, Proposition 184 was on its way to becoming the fastest qualifying initiative in California history. On January 3, 1994, the sponsors of Assembly Bill 971 resubmitted an amended version of the bill that conformed to Proposition 184. On January 31, 1994, Assembly Bill 971 passed the Assembly by a 63 to 9 margin. The Senate passed it by a 29 to 7 margin on March 3, 1994. Governor Pete Wilson signed the bill into law on March 7, 1994. California voters approved Proposition 184 by a margin of 72 to 28 percent on November 8, 1994. California thus became the second State to enact a three strikes law. In November 1993, the voters of Washington State approved their own three strikes law, Initiative 593, by a margin of 3 to 1. U. S. Dept. of Justice, National Institute of Justice, J. Clark, J. Austin, & D. Henry, "Three Strikes and You're Out": A Review of State Legislation 1 (hereinafter Review of State Legislation). Between 1993 and 1995, 24 States and the Federal Government enacted three strikes laws. Though the three strikes laws vary from State to State, they share a common goal of protecting the public safety by providing lengthy prison terms for habitual felons. B California's current three strikes law consists of two virtually identical statutory schemes "designed to increase the prison terms of repeat felons." When a defendant is convicted of a felony, and he has previously been convicted of one or more prior felonies defined as "serious" or "violent" in Cal. Penal Code Ann.5 and 1192.7 sentencing *16 is conducted pursuant to the three strikes law. Prior convictions must be alleged in the charging document, and the defendant has a right to a jury determination that the prosecution has proved the prior convictions beyond a reasonable doubt. 1025; 1158 (West 1985). If the defendant has one prior "serious" or "violent" felony conviction, he must be sentenced to "twice the term otherwise provided as punishment for the current felony conviction." (e)(1) (West 1999); 1170.(c)(1) If the defendant has two or more prior "serious" or "violent" felony convictions, he must receive "an indeterminate term of life imprisonment." (e)(2)(A) (West 1999); 1170.(c)(2)(A) Defendants sentenced to life under the three strikes law become eligible for parole on a date calculated by reference to a "minimum term," which is the greater of (a) three times the term otherwise provided for the current conviction, (b) 25 years, or (c) the term determined by the court pursuant to 1170 for the underlying conviction, including any enhancements. (e)(2)(A)(i)-(iii) (West 1999); 1170.(c)(2)(A)(i)-(iii) Under California law, certain offenses may be classified as either felonies or misdemeanors. These crimes are known as "wobblers." Some crimes that would otherwise be misdemeanors become "wobblers" because of the defendant's prior record. For example, petty theft, a misdemeanor, becomes a "wobbler" when the defendant has previously served a prison term for committing specified theft-related crimes. 490 (West 1999); 666 Other crimes, such as grand theft, are "wobblers" regardless of the defendant's prior record. See 489(b) (West 1999). Both types of "wobblers" are triggering offenses under the three strikes law only when they are treated as felonies. Under California law, a "wobbler" is presumptively a felony and "remains a felony except when the discretion is actually exercised" to make the crime a misdemeanor. In California, prosecutors may exercise their discretion to charge a "wobbler" as either a felony or a misdemeanor. Likewise, California trial courts have discretion to reduce a "wobbler" charged as a felony to a misdemeanor either before preliminary examination or at sentencing to avoid imposing a three strikes sentence. Cal. Penal Code Ann. 17(b)(5), 17(b)(1) (West 1999); In exercising this discretion, the court may consider "those factors that direct similar sentencing decisions," such as "the nature and circumstances of the offense, the defendant's appreciation of and attitude toward the offense,. [and] the general objectives of sentencing." California trial courts can also vacate allegations of prior "serious" or "violent" felony convictions, either on motion by the prosecution or sua sponte. -648. In ruling whether to vacate allegations of prior felony convictions, courts consider whether, "in light of the nature and circumstances of [the defendant's] present felonies and prior serious and/or violent felony convictions, and the particulars of his background, character, and prospects, the defendant may be deemed outside the [three strikes'] scheme's spirit, in whole or in part." Thus, trial courts may avoid imposing a three strikes sentence in two ways: first, by reducing "wobblers" to misdemeanors (which do not qualify as triggering offenses), and second, by vacating allegations of prior "serious" or "violent" felony convictions. C On parole from a 9-year prison term, petitioner Gary Ewing walked into the pro shop of the El Segundo Golf *18 Course in Los Angeles County on March 2000. He walked out with three golf clubs, priced at $399 apiece, concealed in his pants leg. A shop employee, whose suspicions were aroused when he observed Ewing limp out of the pro shop, telephoned the police. The police apprehended Ewing in the parking lot. Ewing is no stranger to the criminal justice system. In 1984, at the age of 22, he pleaded guilty to theft. The court sentenced him to six months in jail (suspended), three years' probation, and a $300 fine. In 1988, he was convicted of felony grand theft auto and sentenced to one year in jail and three years' probation. After Ewing completed probation, however, the sentencing court reduced the crime to a misdemeanor, permitted Ewing to withdraw his guilty plea, and dismissed the case. In 1990, he was convicted of petty theft with a prior and sentenced to 60 days in the county jail and three years' probation. In 1992, Ewing was convicted of battery and sentenced to 30 days in the county jail and two years' summary probation. One month later, he was convicted of theft and sentenced to 10 days in the county jail and months' probation. In January 1993, Ewing was convicted of burglary and sentenced to 60 days in the county jail and one year's summary probation. In February 1993, he was convicted of possessing drug paraphernalia and sentenced to six months in the county jail and three years' probation. In July 1993, he was convicted of appropriating lost property and sentenced to 10 days in the county jail and two years' summary probation. In September 1993, he was convicted of unlawfully possessing a firearm and trespassing and sentenced to 30 days in the county jail and one year's probation. In October and November 1993, Ewing committed three burglaries and one robbery at a Long Beach, California, apartment complex over a 5-week period. He awakened one of his victims, asleep on her living room sofa, as he tried to disconnect her video cassette recorder from the television in *19 that room. When she screamed, Ewing ran out the front door. On another occasion, Ewing accosted a victim in the mailroom of the apartment complex. Ewing claimed to have a gun and ordered the victim to hand over his wallet. When the victim resisted, Ewing produced a knife and forced the victim back to the apartment itself. While Ewing rifled through the bedroom, the victim fled the apartment screaming for help. Ewing absconded with the victim's money and credit cards. On December 9, 1993, Ewing was arrested on the premises of the apartment complex for trespassing and lying to a police officer. The knife used in the robbery and a glass cocaine pipe were later found in the back seat of the patrol car used to transport Ewing to the police station. A jury convicted Ewing of first-degree robbery and three counts of residential burglary. Sentenced to nine years and eight months in prison, Ewing was paroled in 1999. Only 10 months later, Ewing stole the golf clubs at issue in this case. He was charged with, and ultimately convicted of, one count of felony grand theft of personal property in excess of $. See Cal. Penal Code Ann. 484 ; 489 (West 1999). As required by the three strikes law, the prosecutor formally alleged, and the trial court later found, that Ewing had been convicted previously of four serious or violent felonies for the three burglaries and the robbery in the Long Beach apartment complex. See (g) (West 1999); 1170.(e) At the sentencing hearing, Ewing asked the court to reduce the conviction for grand theft, a "wobbler" under California law, to a misdemeanor so as to avoid a three strikes sentence. See 17(b), (d)(1) (West 1999); 1170.(b)(1) Ewing also asked the trial court to exercise its discretion to dismiss the allegations of some or all of his prior serious or violent felony convictions, again for purposes of avoiding a three strikes sentence. See -648. Before sentencing *20 Ewing, the trial court took note of his entire criminal history, including the fact that he was on parole when he committed his latest offense. The court also heard arguments from defense counsel and a plea from Ewing himself. In the end, the trial judge determined that the grand theft should remain a felony. The court also ruled that the four prior strikes for the three burglaries and the robbery in Long Beach should stand. As a newly convicted felon with two or more "serious" or "violent" felony convictions in his past, Ewing was sentenced under the three strikes law to 25 years to life. The California Court of Appeal affirmed in an unpublished opinion. No. B145 (Apr. 25, 2001). Relying on our decision in the court rejected Ewing's claim that his sentence was grossly disproportionate under the Eighth Amendment. Enhanced sentences under recidivist statutes like the three strikes law, the court reasoned, serve the "legitimate goal" of deterring and incapacitating repeat offenders. The Supreme Court of California denied Ewing's petition for review, and we granted certiorari, We now affirm. II A The Eighth Amendment, which forbids cruel and unusual punishments, contains a "narrow proportionality principle" that "applies to noncapital sentences." ; cf. ; We have most recently addressed the proportionality principle as applied to terms of years in a series of cases beginning with *21 In we held that it did not violate the Eighth Amendment for a State to sentence a three-time offender to life in prison with the possibility of Like Ewing, was sentenced to a lengthy prison term under a recidivism statute. 's two prior offenses were a 1964 felony for "fraudulent use of a credit card to obtain $80 worth of goods or services," and a 1969 felony conviction for "passing a forged check in the amount of $28.36." His triggering offense was a conviction for felony theft — "obtaining $0.75 by false pretenses." This Court ruled that "[h]aving twice imprisoned him for felonies, Texas was entitled to place upon the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State." The recidivism statute "is nothing more than a societal decision that when such a person commits yet another felony, he should be subjected to the admittedly serious penalty of incarceration for life, subject only to the State's judgment as to whether to grant him " We noted that this Court "has on occasion stated that the Eighth Amendment prohibits imposition of a sentence that is grossly disproportionate to the severity of the crime." But "[o]utside the context of capital punishment, successful challenges to the proportionality of particular sentences have been exceedingly rare." Although we stated that the proportionality principle "would come into play in the extreme example if a legislature made overtime parking a felony punishable by life imprisonment," we held that "the mandatory life sentence imposed upon this petitioner does not constitute cruel and unusual punishment under the Eighth and Fourteenth Amendments," In the defendant was sentenced to two consecutive terms of 20 years in prison for possession with intent to distribute nine *22 ounces of marijuana and distribution of marijuana. We held that such a sentence was constitutional: "In short, stands for the proposition that federal courts should be reluctant to review legislatively mandated terms of imprisonment, and that successful challenges to the proportionality of particular sentences should be exceedingly rare." Three years after in we held that the Eighth Amendment prohibited "a life sentence without possibility of parole for a seventh nonviolent felony." The triggering offense in was "uttering a `no account' check for $100." We specifically stated that the Eighth Amendment's ban on cruel and unusual punishments "prohibits sentences that are disproportionate to the crime committed," and that the "constitutional principle of proportionality has been recognized explicitly in this Court for almost a century." 286. The Court then explained that three factors may be relevant to a determination of whether a sentence is so disproportionate that it violates the Eighth Amendment: "(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." Applying these factors in we struck down the defendant's sentence of life without We specifically noted the contrast between that sentence and the sentence in pursuant to which the defendant was eligible for ; see also Indeed, we explicitly declined to overrule : "[O]ur conclusion today is not inconsistent with" n. 32; see also ("[O]ur decision *23 is entirely consistent with this Court's prior cases — including "). Eight years after we grappled with the proportionality issue again in was not a recidivism case, but rather involved a first-time offender convicted of possessing 672 grams of cocaine. He was sentenced to life in prison without possibility of A majority of the Court rejected 's claim that his sentence was so grossly disproportionate that it violated the Eighth Amendment. The Court, however, could not agree on why his proportionality argument failed. JUSTICE SCALIA, joined by THE CHIEF JUSTICE, wrote that the proportionality principle was "an aspect of our death penalty jurisprudence, rather than a generalizable aspect of Eighth Amendment law." He would thus have declined to apply gross disproportionality principles except in reviewing capital sentences. JUSTICE KENNEDY, joined by two other Members of the Court, concurred in part and concurred in the judgment. JUSTICE KENNEDY specifically recognized that "[t]he Eighth Amendment proportionality principle also applies to noncapital sentences." He then identified four principles of proportionality review — "the primacy of the legislature, the variety of legitimate penological schemes, the nature of our federal system, and the requirement that proportionality review be guided by objective factors" — that "inform the final one: The Eighth Amendment does not require strict proportionality between crime and sentence. Rather, it forbids only extreme sentences that are `grossly disproportionate' to the crime." at 1001 (citing ). JUSTICE KENNEDY's concurrence also stated that "did not mandate" comparative analysis "within and between jurisdictions." -1005. The proportionality principles in our cases distilled in JUSTICE KENNEDY's concurrence guide our application of the *24 Eighth Amendment in the new context that we are called upon to consider. B For many years, most States have had laws providing for enhanced sentencing of repeat offenders. See, e. g., U. S. Dept. of Justice, Bureau of Justice Assistance, National Assessment of Structured Sentencing Yet between 1993 and 1995, three strikes laws effected a sea change in criminal sentencing throughout the Nation.[1] These laws responded to widespread public concerns about crime by targeting the class of offenders who pose the greatest threat to public safety: career criminals. As one of the chief architects of California's three strikes law has explained: "Three Strikes was intended to go beyond simply making sentences tougher. It was intended to be a focused effort to create a sentencing policy that would use the judicial system to reduce serious and violent crime." Ardaiz, California's Three Strikes Law: History, Expectations, Consequences, Throughout the States, legislatures enacting three strikes laws made a deliberate policy choice that individuals who have repeatedly engaged in serious or violent criminal behavior, and whose conduct has not been deterred by more conventional approaches to punishment, must be isolated from society in order to protect the public safety. Though three strikes laws may be relatively new, our tradition of deferring to state legislatures in making and implementing such important policy decisions is longstanding. Weems, ; ; ; ; ; Our traditional deference to legislative policy choices finds a corollary in the principle that the Constitution "does not mandate adoption of any one penological theory." A sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation. See 1 W. LaFave & A. Scott, Substantive Criminal Law 1.5, pp. 30-36 (1986) (explaining theories of punishment). Some or all of these justifications may play a role in a State's sentencing scheme. Selecting the sentencing rationales is generally a policy choice to be made by state legislatures, not federal courts. When the California Legislature enacted the three strikes law, it made a judgment that protecting the public safety requires incapacitating criminals who have already been convicted of at least one serious or violent crime. Nothing in the Eighth Amendment prohibits California from making that choice. To the contrary, our cases establish that "States have a valid interest in deterring and segregating habitual criminals." ; Recidivism has long been recognized as a legitimate basis for increased punishment. See ; )). California's justification is no pretext. Recidivism is a serious public safety concern in California and throughout the Nation. According to a recent report, approximately 67 percent of former inmates released from state prisons were charged with at least one "serious" new crime within three years of their release. See U. S. Dept. of Justice, Bureau of Justice Statistics, P. Langan & D. Levin, Special Report: Recidivism of Prisoners Released in 1994, p. 1 In particular, released property offenders like Ewing had higher recidivism rates than those released after committing violent, drug, or public-order offenses. Approximately 73 percent of the property offenders released in 1994 were arrested again within three years, compared to approximately 61 percent of the violent offenders, 62 percent of the public-order offenders, and 66 percent of the drug offenders. In when the Sacramento Bee studied 233 three strikes offenders in California, it found that they had an aggregate of 1,165 prior felony convictions, an average of 5 apiece. See Furillo, Three Strikes — The Verdict: Most Offenders Have Long Criminal Histories, Sacramento Bee, Mar. 31, p. A1. The prior convictions included 322 robberies and 262 burglaries. About 84 percent of the 233 three strikes offenders had been convicted of at least one violent crime. In all, they were responsible for 17 homicides, 7 attempted slayings, and 91 sexual assaults and child molestations. The Sacramento Bee concluded, based on its investigation, that "[i]n the vast majority of the cases, regardless of the third strike, the [three strikes] law is snaring [the] long-term habitual offenders with multiple felony convictions." The State's interest in deterring crime also lends some support to the three strikes law. We have long viewed both incapacitation and deterrence as rationales for recidivism * statutes: "[A] recidivist statute['s] primary goals are to deter repeat offenders and, at some point in the life of one who repeatedly commits criminal offenses serious enough to be punished as felonies, to segregate that person from the rest of society for an extended period of time." Four years after the passage of California's three strikes law, the recidivism rate of parolees returned to prison for the commission of a new crime dropped by nearly 25 percent. California Dept. of Justice, Office of the Attorney General, "Three Strikes and You're Out" — Its Impact on the California Criminal Justice System After Four Years, p. 10 Even more dramatically: "An unintended but positive consequence of `Three Strikes' has been the impact on parolees leaving the state. More California parolees are now leaving the state than parolees from other jurisdictions entering California. This striking turnaround started in 1994. It was the first time more parolees left the state than entered since 1976. This trend has continued and in more than 1,000 net parolees left California." See also Janiskee & Erler, Crime, Punishment, and : An Analysis of the Case Against California's Three Strikes Law, 39 Duquesne L. Rev. 43, 45-46 ("Prosecutors in Los Angeles routinely report that `felons tell them they are moving out of the state because they fear getting a second or third strike for a nonviolent offense'" (quoting Sanchez, A Movement Builds Against "Three Strikes" Law, Washington Post, Feb. 18, 2000, p. A3)). To be sure, California's three strikes law has sparked controversy. Critics have doubted the law's wisdom, cost-efficiency, and effectiveness in reaching its goals. See, e. g., Zimring, Hawkins, & Kamin, Punishment and Democracy: Three Strikes and You're Out in California (2001); Vitiello, Three Strikes: Can We Return to Rationality? 87 J. Crim. *28 L. & C. 395, 423 This criticism is appropriately directed at the legislature, which has primary responsibility for making the difficult policy choices that underlie any criminal sentencing scheme. We do not sit as a "superlegislature" to second-guess these policy choices. It is enough that the State of California has a reasonable basis for believing that dramatically enhanced sentences for habitual felons "advance[s] the goals of [its] criminal justice system in any substantial way." See n. 22. III Against this backdrop, we consider Ewing's claim that his three strikes sentence of 25 years to life is unconstitutionally disproportionate to his offense of "shoplifting three golf clubs." Brief for Petitioner 6. We first address the gravity of the offense compared to the harshness of the penalty. At the threshold, we note that Ewing incorrectly frames the issue. The gravity of his offense was not merely "shoplifting three golf clubs." Rather, Ewing was convicted of felony grand theft for stealing nearly $1,200 worth of merchandise after previously having been convicted of at least two "violent" or "serious" felonies. Even standing alone, Ewing's theft should not be taken lightly. His crime was certainly not "one of the most passive felonies a person could commit." To the contrary, the Supreme Court of California has noted the "seriousness" of grand theft in the context of proportionality review. See In re Lynch, Theft of $1,200 in property is a felony under federal law, 18 U.S. C. 641, and in the vast majority of States. See App. B to Brief for Petitioner 21a. That grand theft is a "wobbler" under California law is of no moment. Though California courts have discretion to reduce a felony grand theft charge to a misdemeanor, it remains a felony for all purposes "unless and until the trial *29 court imposes a misdemeanor sentence." In re Anderson, 6 ; see generally 1 B. Witkin & N. Epstein, California Criminal Law 73 "The purpose of the trial judge's sentencing discretion" to downgrade certain felonies is to "impose a misdemeanor sentence in those cases in which the rehabilitation of the convicted defendant either does not require, or would be adversely affected by, incarceration in a state prison as a felon." Anderson, Under California law, the reduction is not based on the notion that a "wobbler" is "conceptually a misdemeanor." 23 Cal. App. 3d 10, Rather, it is "intended to extend misdemeanant treatment to a potential felon." In Ewing's case, however, the trial judge justifiably exercised her discretion not to extend such lenient treatment given Ewing's long criminal history. In weighing the gravity of Ewing's offense, we must place on the scales not only his current felony, but also his long history of felony recidivism. Any other approach would fail to accord proper deference to the policy judgments that find expression in the legislature's choice of sanctions. In imposing a three strikes sentence, the State's interest is not merely punishing the offense of conviction, or the "triggering" offense: "[I]t is in addition the interest in dealing in a harsher manner with those who by repeated criminal acts have shown that they are simply incapable of conforming to the norms of society as established by its criminal law." 445 U. S., at 6; To give full effect to the State's choice of this legitimate penological goal, our proportionality review of Ewing's sentence must take that goal into account. Ewing's sentence is justified by the State's public-safety interest in incapacitating and deterring recidivist felons, and *30 amply supported by his own long, serious criminal record.[2] Ewing has been convicted of numerous misdemeanor and felony offenses, served nine separate terms of incarceration, and committed most of his crimes while on probation or His prior "strikes" were serious felonies including robbery and three residential burglaries. To be sure, Ewing's sentence is a long one. But it reflects a rational legislative judgment, entitled to deference, that offenders who have committed serious or violent felonies and who continue to commit felonies must be incapacitated. The State of California "was entitled to place upon [Ewing] the onus of one who is simply unable to bring his conduct within the social norms prescribed by the criminal law of the State." Ewing's is not "the rare case in which a threshold comparison of the crime committed and the sentence imposed leads to an inference of gross disproportionality." We hold that Ewing's sentence of 25 years to life in prison, imposed for the offense of felony grand theft under the three strikes law, is not grossly disproportionate and therefore does not violate the Eighth Amendment's prohibition on *31 cruel and unusual punishments. The judgment of the California Court of Appeal is affirmed. It is so ordered. JUSTICE SCALIA, concurring in the judgment.

Justice Scalia

concurring

Ewing v. California

2003-03-05

https://www.courtlistener.com/opinion/127897/ewing-v-california/

https://www.courtlistener.com/api/rest/v3/clusters/127897/

2002-028

In my opinion in Harmelin v. Michigan, 501 U.S. 957, 985 (1991), I concluded that the Eighth Amendment's prohibition of "cruel and unusual punishments" was aimed at excluding only certain modes of punishment, and was not a "guarantee against disproportionate sentences." Out of respect for the principle of stare decisis, I might nonetheless accept the contrary holding of Solem v. Helm, 463 U.S. 277 (1983) — that the Eighth Amendment contains a narrow proportionality principle — if I felt I could intelligently apply it. This case demonstrates why I cannot. Proportionality — the notion that the punishment should fit the crime — is inherently a concept tied to the penological goal of retribution. "[I]t becomes difficult even to speak intelligently of `proportionality,' once deterrence and rehabilitation are given significant weight," Harmelin, supra, at 989 — not to mention giving weight to the purpose of California's three strikes law: incapacitation. In the present case, the game is up once the plurality has acknowledged that "the Constitution does not mandate adoption of any one penological theory," and that a "sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation." Ante, at 25 (internal quotation marks omitted). That acknowledgment having been made, it no longer suffices merely to assess "the gravity of the offense compared to the harshness of the penalty," ante, at 28; that classic description of the proportionality principle (alone and in itself quite resistant to policy-free, legal analysis) now becomes merely the "first" step of the inquiry, ibid. Having completed that step (by a discussion which, in all fairness, does not convincingly establish that 25-years-to-life is a "proportionate" punishment for stealing three golf clubs), the *32 plurality must then add an analysis to show that "Ewing's sentence is justified by the State's public-safety interest in incapacitating and deterring recidivist felons." Ante, at 29. Which indeed it is — though why that has anything to do with the principle of proportionality is a mystery. Perhaps the plurality should revise its terminology, so that what it reads into the Eighth Amendment is not the unstated proposition that all punishment should be reasonably proportionate to the gravity of the offense, but rather the unstated proposition that all punishment should reasonably pursue the multiple purposes of the criminal law. That formulation would make it clearer than ever, of course, that the plurality is not applying law but evaluating policy. Because I agree that petitioner's sentence does not violate the Eighth Amendment's prohibition against cruel and unusual punishments, I concur in the judgment. JUSTICE THOMAS, concurring in the judgment. I agree with JUSTICE SCALIA's view that the proportionality test announced in Solem v. Helm, 463 U.S. 277 (1983), is incapable of judicial application. Even were Solem's test perfectly clear, however, I would not feel compelled by stare decisis to apply it. In my view, the Cruel and Unusual Punishments Clause of the Eighth Amendment contains no proportionality principle. See Harmelin v. Michigan, 501 U.S. 957, 966-985 (1991) (opinion of SCALIA, J.). Because the plurality concludes that petitioner's sentence does not violate the Eighth Amendment's prohibition on cruel and unusual punishments, I concur in the judgment.

In my opinion in I concluded that the Eighth Amendment's prohibition of "cruel and unusual punishments" was aimed at excluding only certain modes of punishment, and was not a "guarantee against disproportionate sentences." Out of respect for the principle of stare decisis, I might nonetheless accept the contrary holding of — that the Eighth Amendment contains a narrow proportionality principle — if I felt I could intelligently apply it. This case demonstrates why I cannot. Proportionality — the notion that the punishment should fit the crime — is inherently a concept tied to the penological goal of retribution. "[I]t becomes difficult even to speak intelligently of `proportionality,' once deterrence and rehabilitation are given significant weight," at 989 — not to mention giving weight to the purpose of California's three strikes law: incapacitation. In the present case, the game is up once the plurality has acknowledged that "the Constitution does not mandate adoption of any one penological theory," and that a "sentence can have a variety of justifications, such as incapacitation, deterrence, retribution, or rehabilitation." Ante, at 25 (internal quotation marks omitted). That acknowledgment having been made, it no longer suffices merely to assess "the gravity of the offense compared to the harshness of the penalty," ante, at 28; that classic description of the proportionality principle (alone and in itself quite resistant to policy-free, legal analysis) now becomes merely the "first" step of the inquiry, Having completed that step (by a discussion which, in all fairness, does not convincingly establish that 25-years-to-life is a "proportionate" punishment for stealing three golf clubs), the *32 plurality must then add an analysis to show that "Ewing's sentence is justified by the State's public-safety interest in incapacitating and deterring recidivist felons." Ante, at 29. Which indeed it is — though why that has anything to do with the principle of proportionality is a mystery. Perhaps the plurality should revise its terminology, so that what it reads into the Eighth Amendment is not the unstated proposition that all punishment should be reasonably proportionate to the gravity of the offense, but rather the unstated proposition that all punishment should reasonably pursue the multiple purposes of the criminal law. That formulation would make it clearer than ever, of course, that the plurality is not applying law but evaluating policy. Because I agree that petitioner's sentence does not violate the Eighth Amendment's prohibition against cruel and unusual punishments, I concur in the judgment. JUSTICE THOMAS, concurring in the judgment. I agree with JUSTICE SCALIA's view that the proportionality test announced in is incapable of judicial application. Even were Solem's test perfectly clear, however, I would not feel compelled by stare decisis to apply it. In my view, the Cruel and Unusual Punishments Clause of the Eighth Amendment contains no proportionality principle. See 966- Because the plurality concludes that petitioner's sentence does not violate the Eighth Amendment's prohibition on cruel and unusual punishments, I concur in the judgment.

Justice Stevens

dissenting

Ewing v. California

2003-03-05

https://www.courtlistener.com/opinion/127897/ewing-v-california/

https://www.courtlistener.com/api/rest/v3/clusters/127897/

2002-028

JUSTICE BREYER has cogently explained why the sentence imposed in this case is both cruel and unusual.[1] The concurrences *33 prompt this separate writing to emphasize that proportionality review is not only capable of judicial application but also required by the Eighth Amendment. "The Eighth Amendment succinctly prohibits `excessive' sanctions." Atkins v. Virginia, 536 U.S. 304, 311 (2002); see also U. S. Const., Amdt. 8 ("Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted"). Faithful to the Amendment's text, this Court has held that the Constitution directs judges to apply their best judgment in determining the proportionality of fines, see, e. g., United States v. Bajakajian, 524 U.S. 321, 334-336 (1998), bail, see, e. g., Stack v. Boyle, 342 U.S. 1, 5 (1951), and other forms of punishment, including the imposition of a death sentence, see, e. g., Coker v. Georgia, 433 U.S. 584, 592 (1977). It "would be anomalous indeed" to suggest that the Eighth Amendment makes proportionality review applicable in the context of bail and fines but not in the context of other forms of punishment, such as imprisonment. Solem v. Helm, 463 U.S. 277, 289 (1983). Rather, by broadly prohibiting excessive sanctions, the Eighth Amendment directs judges to exercise their wise judgment in assessing the proportionality of all forms of punishment. The absence of a black-letter rule does not disable judges from exercising their discretion in construing the outer limits on sentencing authority that the Eighth Amendment imposes. After all, judges are "constantly called upon to draw ... lines in a variety of contexts," id., at 294, and to exercise their judgment to give meaning to the Constitution's broadly phrased protections. For example, the Due Process Clause directs judges to employ proportionality review *34 in assessing the constitutionality of punitive damages awards on a case-by-case basis. See, e. g., BMW of North America, Inc. v. Gore, 517 U.S. 559, 562 (1996). Also, although the Sixth Amendment guarantees criminal defendants the right to a speedy trial, the courts often are asked to determine on a case-by-case basis whether a particular delay is constitutionally permissible or not. See, e. g., Doggett v. United States, 505 U.S. 647 (1992).[2] Throughout most of the Nation's history — before guideline sentencing became so prevalent — federal and state trial judges imposed specific sentences pursuant to grants of authority that gave them uncabined discretion within broad ranges. See K. Stith & J. Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts 9 (1998) (hereinafter Stith & Cabranes) ("From the beginning of the Republic, federal judges were entrusted with wide sentencing discretion"); see also Mistretta v. United States, 488 U.S. 361, 364 (1989). It was not unheard of for a statute to authorize a sentence ranging from one year to life, for example. See, e. g., State v. Perley, 86 Me. 427, 30 A. 74, 75 (1894) (citing Maine statute that made robbery punishable by imprisonment for life or any term of years); In re Southard, 298 Mich. 75, 77, 298 N.W. 457 (1941) ("The offense of `robbery armed' is punishable by imprisonment for life or any term *35 of years"). In exercising their discretion, sentencing judges wisely employed a proportionality principle that took into account all of the justifications for punishment — namely, deterrence, incapacitation, retribution, and rehabilitation. See Stith & Cabranes 14. Likewise, I think it clear that the Eighth Amendment's prohibition of "cruel and unusual punishments" expresses a broad and basic proportionality principle that takes into account all of the justifications for penal sanctions. It is this broad proportionality principle that would preclude reliance on any of the justifications for punishment to support, for example, a life sentence for overtime parking. See Rummel v. Estelle, 445 U.S. 263, 274, n. 11 (1980). Accordingly, I respectfully dissent.

JUSTICE BREYER has cogently explained why the sentence imposed in this case is both cruel and unusual.[1] The concurrences *33 prompt this separate writing to emphasize that proportionality review is not only capable of judicial application but also required by the Eighth Amendment. "The Eighth Amendment succinctly prohibits `excessive' sanctions." ; see also U. S. Const., Amdt. 8 ("Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted"). Faithful to the Amendment's text, this Court has held that the Constitution directs judges to apply their best judgment in determining the proportionality of fines, see, e. g., United bail, see, e. g., and other forms of punishment, including the imposition of a death sentence, see, e. g., 433 U.S. 84, 92 It "would be anomalous indeed" to suggest that the Eighth Amendment makes proportionality review applicable in the context of bail and fines but not in the context of other forms of punishment, such as imprisonment. Rather, by broadly prohibiting excessive sanctions, the Eighth Amendment directs judges to exercise their wise judgment in assessing the proportionality of all forms of punishment. The absence of a black-letter rule does not disable judges from exercising their discretion in construing the outer limits on sentencing authority that the Eighth Amendment imposes. After all, judges are "constantly called upon to draw lines in a variety of contexts," and to exercise their judgment to give meaning to the Constitution's broadly phrased protections. For example, the Due Process Clause directs judges to employ proportionality review *34 in assessing the constitutionality of punitive damages awards on a case-by-case basis. See, e. g., BMW of North America, 17 U.S. 9, 62 Also, although the Sixth Amendment guarantees criminal defendants the right to a speedy trial, the courts often are asked to determine on a case-by-case basis whether a particular delay is constitutionally permissible or not. See, e. g., 0 U.S. 647[2] Throughout most of the Nation's history — before guideline sentencing became so prevalent — federal and state trial judges imposed specific sentences pursuant to grants of authority that gave them uncabined discretion within broad ranges. See K. Stith & J. Cabranes, Fear of Judging: Sentencing Guidelines in the Federal Courts 9 (hereinafter Stith & Cabranes) ("From the beginning of the Republic, federal judges were entrusted with wide sentencing discretion"); see also It was not unheard of for a statute to authorize a sentence ranging from one year to life, for example. See, e. g., 7 ; In re Southard, 298 Mich. 7, 298 N.W. 47 ("The offense of `robbery armed' is punishable by imprisonment for life or any term *3 of years"). In exercising their discretion, sentencing judges wisely employed a proportionality principle that took into account all of the justifications for punishment — namely, deterrence, incapacitation, retribution, and rehabilitation. See Stith & Cabranes 14. Likewise, I think it clear that the Eighth Amendment's prohibition of "cruel and unusual punishments" expresses a broad and basic proportionality principle that takes into account all of the justifications for penal sanctions. It is this broad proportionality principle that would preclude reliance on any of the justifications for punishment to support, for example, a life sentence for overtime parking. See 44 U.S. 263, Accordingly, I respectfully dissent.

Justice Breyer

second_dissenting

Ewing v. California

2003-03-05

https://www.courtlistener.com/opinion/127897/ewing-v-california/

https://www.courtlistener.com/api/rest/v3/clusters/127897/

2002-028

The constitutional question is whether the "three strikes" sentence imposed by California upon repeat-offender Gary Ewing is "grossly disproportionate" to his crime. Ante, at 14, 30-31 (plurality opinion). The sentence amounts to a real prison term of at least 25 years. The sentence-triggering criminal conduct consists of the theft of three golf clubs priced at a total of $1,197. See ante, at 18. The offender has a criminal history that includes four felony convictions arising out of three separate burglaries (one armed). Ante, at 18-19. In Solem v. Helm, 463 U.S. 277 (1983), the Court found grossly disproportionate a somewhat longer sentence imposed on a recidivist offender for triggering criminal conduct that was somewhat less severe. In my view, the differences are not determinative, and the Court should reach the same ultimate conclusion here. I This Court's precedent sets forth a framework for analyzing Ewing's Eighth Amendment claim. The Eighth Amendment forbids, as "cruel and unusual punishments," prison *36 terms (including terms of years) that are "grossly disproportionate." Solem, supra, at 303; see Lockyer v. Andrade, post, at 71. In applying the "gross disproportionality" principle, courts must keep in mind that "legislative policy" will primarily determine the appropriateness of a punishment's "severity," and hence defer to such legislative policy judgments. Gore v. United States, 357 U.S. 386, 393 (1958); see Harmelin v. Michigan, 501 U.S. 957, 998 (1991) (KENNEDY, J., concurring in part and concurring in judgment); Solem, supra, at 289-290; Rummel v. Estelle, 445 U.S. 263, 274-276 (1980); Weems v. United States, 217 U.S. 349, 373 (1910). If courts properly respect those judgments, they will find that the sentence fails the test only in rare instances. Solem, supra, at 290, n. 16; Harmelin, supra, at 1004 (KENNEDY, J., concurring in part and concurring in judgment); Rummel, supra, at 272 ("[S]uccessful challenges to the proportionality of particular sentences have been exceedingly rare"). And they will only "`rarely'" find it necessary to "`engage in extended analysis'" before rejecting a claim that a sentence is "grossly disproportionate." Harmelin, supra, at 1004 (KENNEDY, J., concurring in part and concurring in judgment) (quoting Solem, supra, at 290, n. 16). The plurality applies JUSTICE KENNEDY's analytical framework in Harmelin, supra, at 1004-1005 (opinion concurring in part and concurring in judgment). Ante, at 23-24. And, for present purposes, I will consider Ewing's Eighth Amendment claim on those terms. But see ante, at 32-33, n. 1 (STEVENS, J., dissenting). To implement this approach, courts faced with a "gross disproportionality" claim must first make "a threshold comparison of the crime committed and the sentence imposed." Harmelin, supra, at 1005 (KENNEDY, J., concurring in part and concurring in judgment). If a claim crosses that threshold — itself a rare occurrence — then the court should compare the sentence at issue to other sentences "imposed on other criminals" in the same, or in other, jurisdictions. Solem, supra, at 290-291; *37 Harmelin, 501 U. S., at 1005 (KENNEDY, J., concurring in part and concurring in judgment). The comparative analysis will "validate" or invalidate "an initial judgment that a sentence is grossly disproportionate to a crime." Ibid. I recognize the warnings implicit in the Court's frequent repetition of words such as "rare." Nonetheless I believe that the case before us is a "rare" case — one in which a court can say with reasonable confidence that the punishment is "grossly disproportionate" to the crime. II Ewing's claim crosses the gross disproportionality "threshold." First, precedent makes clear that Ewing's sentence raises a serious disproportionality question. Ewing is a recidivist. Hence the two cases most directly in point are those in which the Court considered the constitutionality of recidivist sentencing: Rummel and Solem. Ewing's claim falls between these two cases. It is stronger than the claim presented in Rummel, where the Court upheld a recidivist's sentence as constitutional. It is weaker than the claim presented in Solem, where the Court struck down a recidivist sentence as unconstitutional. Three kinds of sentence-related characteristics define the relevant comparative spectrum: (a) the length of the prison term in real time, i. e., the time that the offender is likely actually to spend in prison; (b) the sentence-triggering criminal conduct, i. e., the offender's actual behavior or other offense-related circumstances; and (c) the offender's criminal history. See Rummel, supra, at 265-266, 269, 276, 278, 280-281 (using these factors); Solem, supra, at 290-303 (same). Cf. United States Sentencing Commission, Guidelines Manual ch. 1, pt. A, intro., n. 5 (Nov. 1987) (USSG) (empirical study of "summary reports of some 40,000 convictions [and] a sample of 10,000 augmented presentence reports" leads to sentences based primarily upon (a) offense characteristics and (b) offender's criminal record); see id., p. s. 3. *38 In Rummel, the Court held constitutional (a) a sentence of life imprisonment with parole available within 10 to 12 years, (b) for the offense of obtaining $120 by false pretenses, (c) committed by an offender with two prior felony convictions (involving small amounts of money). 445 U.S. 263; ante, at 21. In Solem, the Court held unconstitutional (a) a sentence of life imprisonment without parole, (b) for the crime of writing a $100 check on a nonexistent bank account, (c) committed by an offender with six prior felony convictions (including three for burglary). 463 U.S. 277; ante, at 22-23. Which of the three pertinent comparative factors made the constitutional difference? The third factor, prior record, cannot explain the difference. The offender's prior record was worse in Solem, where the Court found the sentence too long, than in Rummel, where the Court upheld the sentence. The second factor, offense conduct, cannot explain the difference. The nature of the triggering offense — viewed in terms of the actual monetary loss — in the two cases was about the same. The one critical factor that explains the difference in the outcome is the length of the likely prison term measured in real time. In Rummel, where the Court upheld the sentence, the state sentencing statute authorized parole for the offender, Rummel, after 10 or 12 years. 445 U.S., at 280; id., at 293 (Powell, J., dissenting). In Solem, where the Court struck down the sentence, the sentence required the offender, Helm, to spend the rest of his life in prison. Now consider the present case. The third factor, offender characteristics — i. e., prior record — does not differ significantly here from that in Solem. Ewing's prior record consists of four prior felony convictions (involving three burglaries, one with a knife) contrasted with Helm's six prior felony convictions (including three burglaries, though none with weapons). The second factor, offense behavior, is worse than that in Solem, but only to a degree. It would be difficult to say that the actual behavior itself here (shoplifting) *39 differs significantly from that at issue in Solem (passing a bad check) or in Rummel (obtaining money through false pretenses). Rather the difference lies in the value of the goods obtained. That difference, measured in terms of the most relevant feature (loss to the victim, i. e., wholesale value) and adjusted for the irrelevant feature of inflation, comes down (in 1979 values) to about $379 here compared with $100 in Solem, or (in 1973 values) to $232 here compared with $120.75 in Rummel. See USSG § 2B1.1, comment., n. 2(A)(i) (Nov. 2002) (loss to victim properly measures value of goods unlawfully taken); U. S. Dept. of Labor, Bureau of Labor Statistics, Inflation and Consumer Spending, Inflation Calculator (Jan. 23, 2003), http://www.bls.gov (hereinafter Inflation Calculator). Alternatively, if one measures the inflation-adjusted value difference in terms of the golf clubs' sticker price, it comes down to $505 here compared to $100 in Solem, or $309 here compared to $120.75 in Rummel. See Inflation Calculator. The difference in length of the real prison term — the first, and critical, factor in Solem and Rummel — is considerably more important. Ewing's sentence here amounts, in real terms, to at least 25 years without parole or good-time credits. That sentence is considerably shorter than Helm's sentence in Solem, which amounted, in real terms, to life in prison. Nonetheless Ewing's real prison term is more than twice as long as the term at issue in Rummel, which amounted, in real terms, to at least 10 or 12 years. And, Ewing's sentence, unlike Rummel's (but like Helm's sentence in Solem), is long enough to consume the productive remainder of almost any offender's life. (It means that Ewing himself, seriously ill when sentenced at age 38, will likely die in prison.) The upshot is that the length of the real prison term — the factor that explains the Solem/Rummel difference in outcome — places Ewing closer to Solem than to Rummel, though the greater value of the golf clubs that Ewing stole *40 moves Ewing's case back slightly in Rummel's direction. Overall, the comparison places Ewing's sentence well within the twilight zone between Solem and Rummel — a zone where the argument for unconstitutionality is substantial, where the cases themselves cannot determine the constitutional outcome. Second, Ewing's sentence on its face imposes one of the most severe punishments available upon a recidivist who subsequently engaged in one of the less serious forms of criminal conduct. See infra, at 44-45. I do not deny the seriousness of shoplifting, which an amicus curiae tells us costs retailers in the range of $30 billion annually. Brief for California District Attorneys Association as Amicus Curiae 27. But consider that conduct in terms of the factors that this Court mentioned in Solem — the "harm caused or threatened to the victim or society," the "absolute magnitude of the crime," and the offender's "culpability." 463 U.S., at 292-293. In respect to all three criteria, the sentence-triggering behavior here ranks well toward the bottom of the criminal conduct scale. The Solicitor General has urged us to consider three other criteria: the "frequency" of the crime's commission, the "ease or difficulty of detection," and "the degree to which the crime may be deterred by differing amounts of punishment." Brief for United States as Amicus Curiae 24-25. When considered in terms of these criteria — or at least the latter two — the triggering conduct also ranks toward the bottom of the scale. Unlike, say, drug crimes, shoplifting often takes place in stores open to other customers whose presence, along with that of store employees or cameras, can help to detect the crime. Nor is there evidence presented here that the law enforcement community believes lengthy prison terms necessary adequately to deter shoplifting. To the contrary, well-publicized instances of shoplifting suggest that the offense is often punished without any prison sentence at all. On the other hand, shoplifting is a frequently committed *41 crime; but "frequency," standing alone, cannot make a critical difference. Otherwise traffic offenses would warrant even more serious punishment. This case, of course, involves shoplifting engaged in by a recidivist. One might argue that any crime committed by a recidivist is a serious crime potentially warranting a 25-year sentence. But this Court rejected that view in Solem, and in Harmelin, with the recognition that "no penalty is per se constitutional." Solem, supra, at 290; Harmelin, 501 U. S., at 1001 (KENNEDY, J., concurring in part and concurring in judgment). Our cases make clear that, in cases involving recidivist offenders, we must focus upon "the [offense] that triggers the life sentence," with recidivism playing a "relevant," but not necessarily determinative, role. Solem, supra, at 296, n. 21; see Witte v. United States, 515 U.S. 389, 402, 403 (1995) (the recidivist defendant is "punished only for the offense of conviction," which "`is considered to be an aggravated offense because a repetitive one'" (quoting Gryger v. Burke, 334 U.S. 728, 732 (1948))). And here, as I have said, that offense is among the less serious, while the punishment is among the most serious. Cf. Rummel, 445 U. S., at 288 (Powell, J., dissenting) (overtime parking violation cannot trigger a life sentence even for a serious recidivist). Third, some objective evidence suggests that many experienced judges would consider Ewing's sentence disproportionately harsh. The United States Sentencing Commission (having based the federal Sentencing Guidelines primarily upon its review of how judges had actually sentenced offenders) does not include shoplifting (or similar theft-related offenses) among the crimes that might trigger especially long sentences for recidivists, see USSG § 4B1.1 (Nov. 2002) (Guideline for sentencing "career offenders"); id., ch. 1, pt. A, intro., n. 5 (sentences based in part upon Commission's review of "summary reports of some 40,000 convictions [and] a sample of 10,000 augmented presentence reports"); see also *42 infra, at 45, nor did Congress include such offenses among triggering crimes when it sought sentences "at or near the statutory maximum" for certain recidivists, S. Rep. No. 98-225, p. 175 (1983); 28 U.S. C. § 994(h) (requiring sentence "at or near the maximum" where triggering crime is crime of "violence" or drug related); 18 U.S. C. § 3559(c) (grand theft not among triggering or "strike" offenses under federal "three strikes" law); see infra, at 45-46. But see 28 U.S. C. § 994(i)(1) (requiring "a substantial term of imprisonment" for those who have "a history of two or more prior ... felony convictions"). Taken together, these three circumstances make clear that Ewing's "gross disproportionality" argument is a strong one. That being so, his claim must pass the "threshold" test. If it did not, what would be the function of the test? A threshold test must permit arguably unconstitutional sentences, not only actually unconstitutional sentences, to pass the threshold — at least where the arguments for unconstitutionality are unusually strong ones. A threshold test that blocked every ultimately invalid constitutional claim — even strong ones — would not be a threshold test but a determinative test. And, it would be a determinative test that failed to take account of highly pertinent sentencing information, namely, comparison with other sentences, Solem, supra, at 291-292, 298-300. Sentencing comparisons are particularly important because they provide proportionality review with objective content. By way of contrast, a threshold test makes the assessment of constitutionality highly subjective. And, of course, so to transform that threshold test would violate this Court's earlier precedent. See 463 U.S., at 290, 291-292; Harmelin, supra, at 1000, 1005 (KENNEDY, J., concurring in part and concurring in judgment). III Believing Ewing's argument a strong one, sufficient to pass the threshold, I turn to the comparative analysis. A *43 comparison of Ewing's sentence with other sentences requires answers to two questions. First, how would other jurisdictions (or California at other times, i. e., without the three strikes penalty) punish the same offense conduct? Second, upon what other conduct would other jurisdictions (or California) impose the same prison term? Moreover, since hypothetical punishment is beside the point, the relevant prison time, for comparative purposes, is real prison time, i. e., the time that an offender must actually serve. Sentencing statutes often shed little light upon real prison time. That is because sentencing laws normally set maximum sentences, giving the sentencing judge discretion to choose an actual sentence within a broad range, and because many States provide good-time credits and parole, often permitting release after, say, one-third of the sentence has been served, see, e. g., Alaska Stat. § 33.20.010(a) (2000); Conn. Gen. Stat. § 18-7a (1998). Thus, the statutory maximum is rarely the sentence imposed, and the sentence imposed is rarely the sentence that is served. For the most part, the parties' briefs discuss sentencing statutes. Nonetheless, that discussion, along with other readily available information, validates my initial belief that Ewing's sentence, comparatively speaking, is extreme. As to California itself, we know the following: First, between the end of World War II and 1994 (when California enacted the three strikes law, ante, at 15), no one like Ewing could have served more than 10 years in prison. We know that for certain because the maximum sentence for Ewing's crime of conviction, grand theft, was for most of that period 10 years. Cal. Penal Code Ann. §§ 484, 489 (West 1970); see Cal. Dept. of Corrections, Offender Information Services, Administrative Services Division, Historical Data for Time Served by Male Felons Paroled from Institutions: 1945 Through 1981, p. 11 (1982) (Table 10) (hereinafter Historical Data for Time Served by California Felons), Lodging of Petitioner. From 1976 to 1994 (and currently, absent application *44 of the three strikes penalty), a Ewing-type offender would have received a maximum sentence of four years. Cal. Penal Code Ann. § 489 (West 1999), § 667.5(b) (West Supp. 2002). And we know that California's "habitual offender" laws did not apply to grand theft. §§ 644(a), (b) (West 1970) (repealed 1977). We also know that the time that any offender actually served was likely far less than 10 years. This is because statistical data show that the median time actually served for grand theft (other than auto theft) was about two years, and 90 percent of all those convicted of that crime served less than three or four years. Historical Data for Time Served by California Felons 11 (Table 10). Second, statistics suggest that recidivists of all sorts convicted during that same time period in California served a small fraction of Ewing's real-time sentence. On average, recidivists served three to four additional (recidivist-related) years in prison, with 90 percent serving less than an additional real seven to eight years. Id., at 22 (Table 21). Third, we know that California has reserved, and still reserves, Ewing-type prison time, i. e., at least 25 real years in prison, for criminals convicted of crimes far worse than was Ewing's. Statistics for the years 1945 to 1981, for example, indicate that typical (nonrecidivist) male first-degree murderers served between 10 and 15 real years in prison, with 90 percent of all such murderers serving less than 20 real years. Id., at 3 (Table 2). Moreover, California, which has moved toward a real-time sentencing system (where the statutory punishment approximates the time served), still punishes far less harshly those who have engaged in far more serious conduct. It imposes, for example, upon nonrecidivists guilty of arson causing great bodily injury a maximum sentence of nine years in prison, Cal. Penal Code Ann. § 451(a) (West 1999) (prison term of 5, 7, or 9 years for arson that causes great bodily injury); it imposes upon those guilty of voluntary manslaughter a maximum sentence of 11 years, § 193 (prison term of 3, 6, or 11 years for voluntary manslaughter). *45 It reserves the sentence that it here imposes upon (former-burglar-now-golf-club-thief) Ewing for nonrecidivist, first-degree murderers. See § 190(a) (West Supp. 2003) (sentence of 25 years to life for first-degree murder). As to other jurisdictions, we know the following: The United States, bound by the federal Sentencing Guidelines, would impose upon a recidivist, such as Ewing, a sentence that, in any ordinary case, would not exceed 18 months in prison. USSG § 2B1.1(a) (Nov. 1999) (assuming a base offense level of 6, a criminal history of VI, and no mitigating or aggravating adjustments); id., ch. 5, pt. A, Sentencing Table. The Guidelines, based in part upon a study of some 40,000 actual federal sentences, see supra, at 37, 41, reserve a Ewing-type sentence for Ewing-type recidivists who currently commit such crimes as murder, § 2A1.2; air piracy, § 2A5.1; robbery (involving the discharge of a firearm, serious bodily injury, and about $1 million), § 2B3.1; drug offenses involving more than, for example, 20 pounds of heroin, § 2D1.1; aggravated theft of more than $100 million, § 2B1.1; and other similar offenses. The Guidelines reserve 10 years of real prison time (with good time) — less than 40 percent of Ewing's sentence — for Ewing-type recidivists who go on to commit, for instance, voluntary manslaughter, § 2A1.3; aggravated assault with a firearm (causing serious bodily injury and motivated by money), § 2A2.2; kidnaping, § 2A4.1; residential burglary involving more than $5 million, § 2B2.1; drug offenses involving at least one pound of cocaine, § 2D1.1; and other similar offenses. Ewing also would not have been subject to the federal "three strikes" law, 18 U.S. C. § 3559(c), for which grand theft is not a triggering offense. With three exceptions, see infra, at 46-47, we do not have before us information about actual time served by Ewing-type offenders in other States. We do know, however, that the law would make it legally impossible for a Ewing-type offender to serve more than 10 years in prison in 33 jurisdictions, as well as the federal courts, see Appendix, *46 Part A, infra, more than 15 years in 4 other States, see Appendix, Part B, infra, and more than 20 years in 4 additional States, see Appendix, Part C, infra. In nine other States, the law might make it legally possible to impose a sentence of 25 years or more, see Appendix, Part D, infra — though that fact by itself, of course, does not mean that judges have actually done so. But see infra this page. I say "might" because the law in five of the nine last mentioned States restricts the sentencing judge's ability to impose a term so long that, with parole, it would amount to at least 25 years of actual imprisonment. See Appendix, Part D, infra. We also know that California, the United States, and other States supporting California in this case, despite every incentive to find someone else like Ewing who will have to serve, or who has actually served, a real prison term anywhere approaching that imposed upon Ewing, have come up with precisely three examples. Brief for United States as Amicus Curiae 28-29, n. 13. The Government points to Ex parte Howington, 622 So. 2d 896 (Ala. 1993), where an Alabama court sentenced an offender with three prior burglary convictions and two prior grand theft convictions to "life" for the theft of a tractor-trailer. The Government also points to State v. Heftel, 513 N.W.2d 397 (S. D. 1994), where a South Dakota court sentenced an offender with seven prior felony convictions to 50 years' imprisonment for theft. And the Government cites Sims v. State, 107 Nev. 438, 814 P.2d 63 (1991), where a Nevada court sentenced a defendant with three prior felony convictions (including armed robbery) and nine misdemeanor convictions to life without parole for the theft of a purse and wallet containing $476. The first of these cases, Howington, is beside the point, for the offender was eligible for parole after 10 years (as in Rummel), not 25 years (as here). Ala. Code § 15-22-28(e) (West 1982). The second case, Heftel, is factually on point, but it is not legally on point, for the South Dakota courts did not consider the constitutionality of the sentence. 513 N. W. *47 2d, at 401. The third case, Sims, is on point both factually and legally, for the Nevada Supreme Court (by a vote of 3 to 2) found the sentence constitutional. I concede that example — a single instance of a similar sentence imposed outside the context of California's three strikes law, out of a prison population now approaching two million individuals. U. S. Dept. of Justice, Office of Justice Programs, Bureau of Justice Statistics, Prison Statistics (Jan. 8, 2003), http://www.ojp.usdoj.gov/bjs/prisons.htm (available in Clerk of Court's case file). The upshot is that comparison of other sentencing practices, both in other jurisdictions and in California at other times (or in respect to other crimes), validates what an initial threshold examination suggested. Given the information available, given the state and federal parties' ability to provide additional contrary data, and given their failure to do so, we can assume for constitutional purposes that the following statement is true: Outside the California three strikes context, Ewing's recidivist sentence is virtually unique in its harshness for his offense of conviction, and by a considerable degree. IV This is not the end of the matter. California sentenced Ewing pursuant to its "three strikes" law. That law represents a deliberate effort to provide stricter punishments for recidivists. Cal. Penal Code Ann. § 667(b) (West 1999) ("It is the intent of the Legislature ... to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses"); ante, at 24. And, it is important to consider whether special criminal justice concerns related to California's three strikes policy might justify including Ewing's theft within the class of triggering criminal conduct (thereby imposing a severe punishment), even if Ewing's sentence would otherwise seem disproportionately harsh. *48 Cf. Harmelin, 501 U. S., at 998-999, 1001 (noting "the primacy of the legislature" in making sentencing policy). I can find no such special criminal justice concerns that might justify this sentence. The most obvious potential justification for bringing Ewing's theft within the ambit of the statute is administrative. California must draw some kind of workable line between conduct that will trigger, and conduct that will not trigger, a "three strikes" sentence. "But the fact that a line has to be drawn somewhere does not justify its being drawn anywhere." Pearce v. Commissioner, 315 U.S. 543, 558 (1942) (Frankfurter, J., dissenting). The statute's administrative objective would seem to be one of separating more serious, from less serious, triggering criminal conduct. Yet the statute does not do that job particularly well. The administrative line that the statute draws separates "felonies" from "misdemeanors." See Brief for Respondent 6 ("The California statute relies, fundamentally, on traditional classifications of certain crimes as felonies"). Those words suggest a graduated difference in degree. But an examination of how California applies these labels in practice to criminal conduct suggests that the offenses do not necessarily reflect those differences. See United States v. Watson, 423 U.S. 411, 438-441 (1976) (Marshall, J., dissenting) (felony/misdemeanor distinction often reflects history, not logic); Rummel, 445 U. S., at 284 ("The most casual review of the various criminal justice systems now in force in the 50 States of the Union shows that the line dividing felony theft from petty larceny, a line usually based on the value of the property taken, varies markedly from one State to another"). Indeed, California uses those words in a way unrelated to the seriousness of offense conduct in a set of criminal statutes called "`wobblers,'" see ante, at 16, one of which is at issue in this case. Most "wobbler" statutes classify the same criminal conduct either as a felony or as a misdemeanor, depending upon *49 the actual punishment imposed, Cal. Penal Code Ann. §§ 17(a), (b) (West 1999); ante, at 16-17, which in turn depends primarily upon whether "the rehabilitation of the convicted defendant" either does or does not "require" (or would or would not "be adversely affected by") "incarceration in a state prison as a felon." In re Anderson, 69 Cal. 2d 613, 664-665, 447 P.2d 117, 152 (1968) (Tobriner, J., concurring in part and dissenting in part); ante, at 29. In such cases, the felony/misdemeanor classification turns primarily upon the nature of the offender, not the comparative seriousness of the offender's conduct. A subset of "wobbler" statutes, including the "petty theft with a prior" statute, Cal. Penal Code Ann. § 666 (West Supp. 2002), defining the crime in the companion case, Lockyer v. Andrade, post, p. 63, authorizes the treatment of otherwise misdemeanor conduct, see Cal. Penal Code Ann. § 490 (West 1999), as a felony only when the offender has previously committed a property crime. Again, the distinction turns upon characteristics of the offender, not the specific offense conduct at issue. The result of importing this kind of distinction into California's three strikes statute is a series of anomalies. One anomaly concerns the seriousness of the triggering behavior. "Wobbler" statutes cover a wide variety of criminal behavior, ranging from assault with a deadly weapon, § 245, vehicular manslaughter, § 193(c)(1), and money laundering, § 186.10(a), to the defacement of property with graffiti, § 594(b)(2)(A) (West Supp. 2002), or stealing more than $100 worth of chickens, nuts, or avocados, § 487(b)(1)(A) (West Supp. 2003); § 489 (West 1999). Some of this behavior is obviously less serious, even if engaged in twice, than other criminal conduct that California statutes classify as pure misdemeanors, such as reckless driving, Cal. Veh. Code Ann. § 23103 (West Supp. 2003); § 23104(a) (West 2000) (reckless driving causing bodily injury), the use of force or threat of force to interfere with another's civil rights, Cal. Penal Code *50 Ann. § 422.6 (West 1999), selling poisoned alcohol, § 347b, child neglect, § 270, and manufacturing or selling false government documents with the intent to conceal true citizenship, § 112(a) (West Supp. 2002). Another anomaly concerns temporal order. An offender whose triggering crime is his third crime likely will not fall within the ambit of the three strikes statute provided that (a) his first crime was chicken theft worth more than $100, and (b) he subsequently graduated to more serious crimes, say, crimes of violence. That is because such chicken theft, when a first offense, will likely be considered a misdemeanor. A similar offender likely will fall within the scope of the three strikes statute, however, if such chicken theft was his third crime. That is because such chicken theft, as a third offense, will likely be treated as a felony. A further anomaly concerns the offender's criminal record. California's "wobbler" "petty theft with a prior" statute, at issue in Lockyer v. Andrade, post, p. 63, classifies a petty theft as a "felony" if, but only if, the offender has a prior record that includes at least one conviction for certain theft-related offenses. Cal. Penal Code Ann. § 666 (West Supp. 2002). Thus a violent criminal who has committed two violent offenses and then steals $200 will not fall within the ambit of the three strikes statute, for his prior record reveals no similar property crimes. A similar offender will fall within the scope of the three strikes statute, however, if that offender, instead of having committed two previous violent crimes, has committed one previous violent crime and one previous petty theft. (Ewing's conduct would have brought him within the realm of the petty theft statute prior to 1976 but for inflation.) At the same time, it is difficult to find any strong need to define the lower boundary as the State has done. The three strikes statute itself, when defining prior "strikes," simply lists the kinds of serious criminal conduct that falls within the definition of a "strike." § 667.5(c) (listing "violent" felonies); *51 § 1192.7(c) (West Supp. 2003) (listing "serious" felonies). There is no obvious reason why the statute could not enumerate, consistent with its purposes, the relevant triggering crimes. Given that possibility and given the anomalies that result from California's chosen approach, I do not see how California can justify on administrative grounds a sentence as seriously disproportionate as Ewing's. See Parts II and III, supra. Neither do I see any other way in which inclusion of Ewing's conduct (as a "triggering crime") would further a significant criminal justice objective. One might argue that those who commit several property crimes should receive long terms of imprisonment in order to "incapacitate" them, i. e., to prevent them from committing further crimes in the future. But that is not the object of this particular three strikes statute. Rather, as the plurality says, California seeks "`to reduce serious and violent crime.'" Ante, at 24 (quoting Ardaiz, California's Three Strikes Law: History, Expectations, Consequences, 32 McGeorge L. Rev. 1 (2000) (emphasis added)). The statute's definitions of both kinds of crime include crimes against the person, crimes that create danger of physical harm, and drug crimes. See, e. g., Cal. Penal Code Ann. § 667.5(c)(1) (West Supp. 2002), § 1192.7(c)(1) (West Supp. 2003) (murder or voluntary manslaughter); § 667.5(c)(21) (West Supp. 2002), § 1192.7(c)(18) (West Supp. 2003) (first-degree burglary); § 1192.7(c)(24) (selling or giving or offering to sell or give heroin or cocaine to a minor). They do not include even serious crimes against property, such as obtaining large amounts of money, say, through theft, embezzlement, or fraud. Given the omission of vast categories of property crimes — including grand theft (unarmed) — from the "strike" definition, one cannot argue, on property-crime-related incapacitation grounds, for inclusion of Ewing's crime among the triggers. Nor do the remaining criminal law objectives seem relevant. No one argues for Ewing's inclusion within the ambit *52 of the three strikes statute on grounds of "retribution." Cf. Vitiello, Three Strikes: Can We Return to Rationality? 87 J. Crim. L. & C. 395, 427 (1997) (California's three strikes law, like other "[h]abitual offender statutes[, is] not retributive" because the term of imprisonment is "imposed without regard to the culpability of the offender or [the] degree of social harm caused by the offender's behavior," and "has little to do with the gravity of the offens[e]"). For reasons previously discussed, in terms of "deterrence," Ewing's 25-year term amounts to overkill. See Parts II and III, supra. And "rehabilitation" is obviously beside the point. The upshot is that, in my view, the State cannot find in its three strikes law a special criminal justice need sufficient to rescue a sentence that other relevant considerations indicate is unconstitutional. V JUSTICE SCALIA and JUSTICE THOMAS argue that we should not review for gross disproportionality a sentence to a term of years. Ante, at 31 (SCALIA, J., concurring in judgment); ante, at 32 (THOMAS, J., concurring in judgment). Otherwise, we make it too difficult for legislators and sentencing judges to determine just when their sentencing laws and practices pass constitutional muster. I concede that a bright-line rule would give legislators and sentencing judges more guidance. But application of the Eighth Amendment to a sentence of a term of years requires a case-by-case approach. And, in my view, like that of the plurality, meaningful enforcement of the Eighth Amendment demands that application — even if only at sentencing's outer bounds. A case-by-case approach can nonetheless offer guidance through example. Ewing's sentence is, at a minimum, 2 to 3 times the length of sentences that other jurisdictions would impose in similar circumstances. That sentence itself is sufficiently long to require a typical offender to spend virtually all the remainder of his active life in prison. These and the *53 other factors that I have discussed, along with the questions that I have asked along the way, should help to identify "gross disproportionality" in a fairly objective way — at the outer bounds of sentencing. In sum, even if I accept for present purposes the plurality's analytical framework, Ewing's sentence (life imprisonment with a minimum term of 25 years) is grossly disproportionate to the triggering offense conduct — stealing three golf clubs — Ewing's recidivism notwithstanding. For these reasons, I dissent. APPENDIX TO OPINION OF BREYER, J. A Thirty-three jurisdictions, as well as the federal courts, have laws that would make it impossible to sentence a Ewing-type offender to more than 10 years in prison:[1] Federal: 12 to 18 months. USSG § 2B1.1 (Nov. 1999); id., ch. 5, pt. A, Sentencing Table. Alaska: three to five years; presumptive term of three years. Alaska Stat. §§ 11.46.130(a)(1), (c), 12.55.125(e) (2000). Arizona: four to six years; presumptive sentence of five years. Ariz. Rev. Stat. Ann. §§ 13-604(C), 13-1802(E) (West 2001). Connecticut: 1 to 10 years. Conn. Gen. Stat. §§ 53a-35a(6), 53a-40(j), 53a-124(a)(2) (2001). Delaware: not more than two years. Del. Code Ann., Tit. 11, § 840(d) (Supp. 2000); § 4205(b)(7) (1995). Recidivist offender penalty not applicable. See § 4214; Buckingham v. State, 482 A.2d 327 (Del. 1984). District of Columbia: not more than 10 years. D. C. Code Ann. § 22-3212(a) (West 2001). Recidivist offender penalty *54 not applicable. See § 22-1804a(c)(2) (West 2001) (amended 2001). Florida: not more than 10 years. Fla. Stat. Ann. §§ 775.084(1)(a), (4)(a)(3) (West 2000) (amended 2002); § 812.014(c)(1) (West 2000). Georgia: 10 years. Ga. Code Ann. § 16-8-12(a)(1) (1996); § 17-10-7(a) (Supp. 1996). Hawaii: 20 months. Haw. Rev. Stat. §§ 708-831(1)(b), 706-606.5(1)(a)(iv), (7)(a) (Supp. 2001). Idaho: 1 to 14 years. Idaho Code §§ 18-2403, 18-2407(b)(1), 18-2408(2)(a) (1948-1997). Recidivist/habitual offender penalty of five years to life in prison, § 19-2514, likely not applicable. Idaho has a general rule that "`convictions entered the same day or charged in the same information should count as a single conviction for purposes of establishing habitual offender status.'" State v. Harrington, 133 Idaho 563, 565, 990 P.2d 144, 146 (App. 1999) (quoting State v. Brandt, 110 Idaho 341, 344, 715 P.2d 1011, 1014 (App. 1986)). However, "the nature of the convictions in any given situation must be examined to make certain that [this] general rule is appropriate." Ibid. In this case, Ewing's prior felony convictions stemmed from acts committed at the same apartment complex, and three of the four felonies were committed within a day of each other; the fourth offense was committed five weeks earlier. See App. 6; Tr. 45-46 (Information, Case No. NA018343-01 (Cal. Super. Ct.) (available in Clerk of Court's case file)). A review of Idaho case law suggests that this case is factually distinguishable from cases in which the Idaho courts have declined to adhere to the general rule. See, e. g., Brandt, supra, at 343, 344, 715 P.2d, at 1013, 1014 (three separately charged property offenses involving three separate homes and different victims committed "during a two-month period"); State v. Mace, 133 Idaho 903, 907, 994 P.2d 1066, 1070 (App. 2000) (unrelated crimes (grand theft and DUI) committed on different dates in different counties); State v. Smith, 116 Idaho 553, 560, 777 *55 P. 2d 1226, 1233 (App. 1989) (separate and distinguishable crimes committed on different victims in different counties). Illinois: two to five years. Ill. Comp. Stat., ch. 730, § 5/ 5-8-1(a)(6) (Supp. 2001); ch. 720, § 5/16-1(b)(4). Recidivist offender penalty not applicable. § 5/33B-1(a) (2000). Indiana: 18 months (with not more than 18 months added for aggravating circumstances). Ind. Code § 35-43-4-2(a) (1993); § 35-50-2-7(a). Recidivist offender penalty not applicable. See § 35-50-2-8 (amended 2001). Iowa: three to five years. Iowa Code Ann. §§ 714.2(2), 902.9(5) (West Supp. 2002); § 902.8 (West 1994). Kansas: 9 to 11 months. Kan. Stat. Ann. §§ 21-3701(b)(2), 21-4704(a) (1995). Recidivist offender penalty not applicable. See § 21-4504(e)(3). Kentucky: 5 to 10 years. Ky. Rev. Stat. Ann. § 514.030(2) (Lexis Supp. 2002); §§ 532.060(2)(c), (d), 532.080(2), (5) (Lexis 1999). Maine: less than one year. Me. Rev. Stat. Ann., Tit. 17-A, § 353 (West 1983); § 362(4)(B) (West Supp. 2000) (amended 2001); § 1252(2)(D) (West 1983 and Supp. 2002). Recidivist offender penalty not applicable. See § 1252(4-A) (West Supp. 2000) (amended 2001). Massachusetts: not more than five years. Mass. Gen. Laws, ch. 266, § 30(1) (West 2000). Recidivist offender penalty not applicable. See ch. 279, § 25 (West 1998); Commonwealth v. Hall, 397 Mass. 466, 468, 492 N.E.2d 84, 85 (1986). Minnesota: not more than five years. Minn. Stat. § 609.52, subd. 3(3)(a) (2002). Recidivist offender penalty not applicable. See § 609.1095, subd. 2. Mississippi: not more than five years. Miss. Code Ann. § 97-17-41(1)(a) (Lexis 1973-2000). Recidivist offender penalty not applicable. See § 99-19-81. Nebraska: not more than five years. Neb. Rev. Stat. § 28-105(1) (2000 Cum. Supp.); § 28-518(2) (1995). Recidivist offender penalty not applicable. See § 29-2221(1). *56 New Jersey: Extended term of between 5 to 10 years (instead of three to five years, N. J. Stat. Ann. §2C:43-6 (1995)), § 2C:43-7(a)(4) (Supp. 2002), whether offense is treated as theft, § 2C:20-2(b)(2)(a), or shoplifting, §§ 2C:20-11(b), (c)(2), because, even if Ewing's felonies are regarded as one predicate crime, Ewing has been separately convicted and sentenced for at least one other crime for which at least a 6-month sentence was authorized, § 2C:44-3(a); § 2C:44-4(c) (1995). New Mexico: 30 months. N. M. Stat. Ann. § 30-16-20(B)(3) (1994); § 31-18-15(A)(6) (2000); § 31-18-17(B) (2000) (amended 2002). New York: three to four years. N. Y. Penal Law § 70.06(3)(e) (West 1998); § 155.30 (West 1999). North Carolina: 4 to 25 months (with exact sentencing range dependent on details of offender's criminal history). N. C. Gen. Stat. §§ 15A-1340.14, 15A-1340.17(c), (d), 14-72(a) (2001). Recidivist offender penalty not applicable. See §§ 14-7.1, 14-7.6. North Dakota: not more than 10 years. N. D. Cent. Code § 12.1-23-05(2)(a) (1997); §§ 12.1-32-09(1), (2)(c) (1997) (amended 2001). Ohio: 6 to 12 months. Ohio Rev. Code Ann. §§ 2913.02(B)(2), 2929.14(A)(5) (West Supp. 2002). No general recidivist statute. Oregon: not more than five years. Ore. Rev. Stat. § 161.605 (1997); Ore. Rev. Stat. Ann. §§ 164.055(1)(a), (3) (Supp. 1998). No general recidivist statute. Pennsylvania: not more than five years (if no more than one prior theft was "retail theft"); otherwise, not more than seven years. Pa. Stat. Ann., Tit. 18, §§ 1103(3), 1104(1) (Purdon 1998); §§ 3903(b), 3929(b)(1)(iii)-(iv) (Purdon Supp. 2002); § 3921 (Purdon 1983). Recidivist offender penalty not applicable. See 42 Pa. Cons. Stat. § 9714(a)(1) (1998). *57 Rhode Island: not more than 10 years. R. I. Gen. Laws § 11-41-5(a) (2002). Recidivist offender penalty not applicable. See § 12-19-21(a). South Carolina: not more than five years. S. C. Code Ann. §§ 16-13-30, XX-XX-XXX(B)(2) (West 2001 Cum. Supp.). Recidivist offender penalty not applicable. See § 17-25-45. Tennessee: four to eight years. Tenn. Code Ann. §§ 39-14-105(3), 40-35-106(a)(1), (c), 40-35-112(b)(4) (1997). Utah: not more than five years. Utah Code Ann. § 76-3-203(3) (1999) (amended 2000); § 76-6-412(1)(b)(i) (1999). Recidivist offender penalty not applicable. See § 76-3-203.5 (Supp. 2002). Washington: not more than 14 months (with exact sentencing range dependent on details of offender score), Wash. Rev. Code §§ 9A.56.040(1)(a), (2) (2000); §§ 9.94A.510(1), 9.94A.515, 9.94A.525 (2003 Supp. Pamphlet); maximum sentence of five years, §§ 9A.56.040(1)(a), (2), 9A.20.021(1)(c) (2000). Recidivist offender penalty not applicable. See §§ 9.94A.030(27), (31) (2000); § 9.94A.570 (2003 Supp. Pamphlet). Wyoming: not more than 10 years. Wyo. Stat. Ann. § 6-3-404(a)(i) (Michie 2001). Recidivist offender penalty not applicable. See § 6-10-201(a). B In four other States, a Ewing-type offender could not have received a sentence of more than 15 years in prison: Colorado: 4 to 12 years for "extraordinary aggravating circumstances" (e. g., defendant on parole for another felony at the time of commission of the triggering offense). Colo. Rev. Stat. §§ 18-1-105(1)(a)(V)(A), 18-1-105(9)(a)(II), 18-4-401(2)(c) (2002). Recidivist offender penalty not applicable. See §§ 16-13-101(f)(1.5), (2) (2001). Maryland: not more than 15 years. Md. Ann. Code, Art. 27, § 342(f)(1) (1996) (repealed 2002). Recidivist offender penalty not applicable. See § 643B. *58 New Hampshire: not more than 15 years. N. H. Stat. Ann. §§ 637:11(I)(a), 651:2(II)(a) (West Supp. 2002). Recidivist offender penalty not applicable. See § 651:6(I)(c). Wisconsin: not more than 11 years (at the time of Ewing's offense). Wis. Stat. Ann. § 939.50(3)(e) (West Supp. 2002); §§ 939.62(1)(b), (2), 943.20(3)(b) (West 1996) (amended 2001). Wisconsin subsequently amended the relevant statutes so that a Ewing-type offender would only be eligible for a sentence of up to three years. See §§ 939.51(3)(a), 943.20(3)(a), 939.62(1)(a) (West Supp. 2003). And effective February 1, 2003, such an offender is eligible for a sentence of only up to two years. See §§ 939.51(3)(a), 943.20(3)(a), 939.62(1)(a). C In four additional States, a Ewing-type offender could not have been sentenced to more than 20 years in prison: Arkansas: 3 to 20 years. Ark. Code Ann. § 5-36-103(b)(2)(A) (1997); §§5-4-501(a)(2)(D), (e)(1) (1997) (amended 2001). Eligible for parole after serving one-third of the sentence. § 5-4-501 (1997); § 16-93-608 (1987). Missouri: not more than 20 years. Mo. Rev. Stat. § 558.016(7)(3) (2000); § 570.030(3)(1) (2000) (amended 2002). Eligible for parole after 15 years at the latest. § 558.011(4)(1)(c). Texas: 2 to 20 years. Tex. Penal Code Ann. §§ 12.33(a), 12.35(c)(2)(A) (1994); §§ 12.42(a)(3), 31.03(e)(4)(D) (Supp. 2003). Eligible for parole after serving one-fourth of sentence. Tex. Govt. Code Ann. § 508.145(f) (Supp. 2003). Virginia: statutory range of 1 to 20 years (or less than 12 months at the discretion of the jury or court following bench trial), Va. Code Ann. § 18.2-95 (Supp. 2002), but discretionary sentencing guideline ranges established by the Virginia Sentencing Commission, §§ 17.1-805, 19.2-298.01 (2000), with a maximum of 6 years, 3 months, to 15 years, 7 months, see Virginia Criminal Sentencing Commission, Virginia Sentencing Guidelines Manual, Larceny — Section C Recommendation *59 Table (6th ed. 2002) (with petitioner likely falling within the discretionary guideline range of 2 years, 1 month, to 5 years, 3 months, see Brief for Petitioner 33, n. 25). Recidivist offender penalty not applicable. See § 19.2-297.1 (2000). D In nine other States, the law might make it legally possible to impose a sentence of 25 years or more upon a Ewing-type offender. But in five of those nine States,[2] the offender would be parole-eligible before 25 years: Alabama: "life or any term of not less than 20 years." Ala. Code § 13A-5-9(c)(2) (Lexis Supp. 2002); §§ 13A-8-3(a), (c) (1994). Eligible for parole after the lesser of one-third of the sentence or 10 years. § 15-22-28(e) (1995). Louisiana: Louisiana courts could have imposed a sentence of life without the possibility of parole at the time of Ewing's offense. La. Stat. Ann. §§ 14:67.10(B)(1), 14:2(4), (13)(y) (West Supp. 2003); §§ 15:529.1(A)(1)(b)(ii) and (c)(i)-(ii) (West 1992) (amended 2001). Petitioner argues that, despite the statutory authority to impose such a sentence, Louisiana courts would have carefully scrutinized his life sentence, as they had in other cases involving recidivists charged with a nonviolent crime. Brief for Petitioner 35-36, n. 29; see Brief for Families Against Mandatory Minimums as Amicus Curiae 24-25, and n. 21; State v. Hayes, 98-1526, p. 4 (La. App. 6/25/99), 739 So. 2d 301, 303-304 (holding that a life sentence was impermissibly excessive for a defendant convicted of theft of over $1,000, who had a prior robbery conviction). But see Brief for Respondent 45-46, n. 12 (contesting petitioner's argument). Louisiana has amended its recidivist statute to require that the triggering offense be a violent felony, and that the offender have at least two prior violent felony convictions to be eligible for a life sentence. La. Stat. *60 Ann. § 15:529.1(A)(1)(b)(ii) (West Supp. 2003). Under current law, a Ewing-type offender would face a sentence of 6 2/3 to 20 years. §§ 14:67.10(B)(1), 15:529.1(A)(b)(i). Michigan: "imprisonment for life or for a lesser term," Mich. Comp. Laws Ann. § 769.12(1)(a) (West 2000) (instead of "not more than 15 years," § 769.12(1)(b), as petitioner contends, see Brief for Petitioner 34, n. 26; Brief for Families Against Mandatory Minimums as Amicus Curiae 16-17, n. 15, 22-23, n. 20), because the triggering offense is "punishable upon a first conviction by imprisonment for a maximum term of 5 years or more," § 769.12(1)(a) (West 2000). The larceny for which Ewing was convicted was, under Michigan law, "a felony punishable by imprisonment for not more than 5 years." § 750.356(3)(a) (West Supp. 2002). Eligible for parole following minimum term set by sentencing judge. § 769.12(4) (West 2000). Montana: 5 to 100 years. Mont. Code Ann. § 45-6-301(7)(b) (1999); §§ 46-18-501, 46-18-502(1) (2001). A Ewing-type offender would not have been subject to a minimum term of 10 years in prison (as the State suggests, Brief for Respondent 44) because Ewing does not meet the requirements of § 46-18-502(2) (must be a "persistent felony offender," as defined in § 46-18-501, at the time of the offender's previous felony conviction). See Reply Brief for Petitioner 18, n. 14. Eligible for parole after one-fourth of the term. § 46-23-201(2). Nevada: "life without the possibility of parole," or "life with the possibility of parole [after serving] 10 years," or "a definite term of 25 years, with eligibility for parole [after serving] 10 years." Nev. Rev. Stat. §§ 207.010(1)(b)(1)-(3) (1995). Oklahoma: not less than 20 years (at the time of Ewing's offense). Okla. Stat., Tit. 21, § 51.1(B) (West Supp. 2000) (amended in 2001 to four years to life, § 51.1(C) (West 2001)); § 1704 (West 1991) (amended 2001). Eligible for parole after serving one-third of sentence. Tit. 57, § 332.7(B) (West *61 2001). Thus, assuming a sentence to a term of years of up to 100 years (as in Montana, see supra, at 60), parole eligibility could arise as late as after 33 years. South Dakota: maximum penalty of life imprisonment, with no minimum term. S. D. Codified Laws § 22-7-8 (1998); § 22-30A-17(1) (Supp. 2002). Eligible for parole after serving one-half of sentence. § 24-15-5(3) (1998). Thus, assuming a sentence to a term of years of up to 100 years (as in Montana, see supra, at 60), parole eligibility could arise as late as after 50 years. Vermont: "up to and including life," Vt. Stat. Ann., Tit. 13, § 11 (1998), or not more than 10 years, § 2501; State v. Angelucci, 137 Vt. 272, 289-290, 405 A.2d 33, 42 (1979) (court has discretion to sentence habitual offender to the sentence that is specified for grand larceny alone). Eligible for parole after six months. Tit. 28, § 501 (2000) (amended 2001). West Virginia: Petitioner contends that he would only have been subject to a misdemeanor sentence of not more than 60 days for shoplifting, W. Va. Code §§ 61-3A-1, 61-3A-3(a)(2) (2000); Brief for Petitioner 31, n. 19, 33-34, n. 25. However, a Ewing-type offender could have been charged with grand larceny, see State ex rel. Chadwell v. Duncil, 196 W. Va. 643, 647-648, 474 S.E.2d 573, 577-578 (1996) (prosecutor has discretion to charge defendant with either shoplifting or grand larceny), a felony punishable by imprisonment in the state penitentiary for 1 to 10 years (or, at the discretion of the trial court, not more than 1 year in jail). § 61-3-13(a). Under West Virginia's habitual offender statute, a felon "twice before convicted ... of a crime punishable by confinement in a penitentiary ... shall be sentenced to ... life [imprisonment]," § 61-11-18(c), with parole eligibility after 15 years, § 62-12-13(c). Amicus curiae on behalf of petitioner notes that, in light of existing state-law precedents, West Virginia courts "would not countenance a sentence of life without the possibility of parole for 25 years for shoplifting golf clubs." Brief for Families Against Mandatory Minimums as Amicus *62 Curiae 25-26 (citing State v. Barker, 186 W. Va. 73, 74-75, 410 S.E.2d 712, 713-714 (1991) (per curiam); and State v. Deal, 178 W. Va. 142, 146-147, 358 S.E.2d 226, 230-231 (1987)). But see Brief for Respondent 45, n. 11 (contesting that argument).

The constitutional question is whether the "three strikes" sentence imposed by California upon repeat-offender Gary Ewing is "grossly disproportionate" to his crime. Ante, at 14, 30-31 (plurality opinion). The sentence amounts to a real prison term of at least 25 The sentence-triggering criminal conduct consists of the theft of three golf clubs priced at a total of $1,197. See ante, at 18. The offender has a criminal history that includes four felony convictions arising out of three separate burglaries (one armed). Ante, at 18-19. In the Court found grossly disproportionate a somewhat longer sentence imposed on a recidivist offender for triggering criminal conduct that was somewhat less severe. In my view, the differences are not determinative, and the Court should reach the same ultimate conclusion here. I This Court's precedent sets forth a framework for analyzing Ewing's Eighth Amendment claim. The Eighth Amendment forbids, as "cruel and unusual punishments," prison *36 terms (including terms of years) that are "grossly disproportionate." ; see Lockyer v. Andrade, post, at 71. In applying the "gross disproportionality" principle, courts must keep in mind that "legislative policy" will primarily determine the appropriateness of a punishment's "severity," and hence defer to such legislative policy judgments. ; see ; ; ; If courts properly respect those judgments, they will find that the sentence fails the test only in rare instances. ; ; And they will only "`rarely'" find it necessary to "`engage in extended analysis'" before rejecting a claim that a sentence is "grossly disproportionate." (quoting ). The plurality applies JUSTICE KENNEDY's analytical framework in -1005 Ante, at 23-24. And, for present purposes, I will consider Ewing's Eighth Amendment claim on those terms. But see ante, 2-33, n. 1 (STEVENS, J., dissenting). To implement this approach, courts faced with a "gross disproportionality" claim must first make "a threshold comparison of the crime committed and the sentence imposed." If a claim crosses that threshold — itself a rare occurrence — then the court should compare the sentence at issue to other sentences "imposed on other criminals" in the same, or in other, jurisdictions. ; *37 501 U. S., The comparative analysis will "validate" or invalidate "an initial judgment that a sentence is grossly disproportionate to a crime." I recognize the warnings implicit in the Court's frequent repetition of words such as "rare." Nonetheless I believe that the case before us is a "rare" case — one in which a court can say with reasonable confidence that the punishment is "grossly disproportionate" to the crime. II Ewing's claim crosses the gross disproportionality "threshold." First, precedent makes clear that Ewing's sentence raises a serious disproportionality question. Ewing is a recidivist. Hence the two cases most directly in point are those in which the Court considered the constitutionality of recidivist sentencing: and Ewing's claim falls between these two cases. It is stronger than the claim presented in where the Court upheld a recidivist's sentence as constitutional. It is weaker than the claim presented in where the Court struck down a recidivist sentence as unconstitutional. Three kinds of sentence-related characteristics define the relevant comparative spectrum: (a) the length of the prison term in real time, i. e., the time that the offender is likely actually to spend in prison; (b) the sentence-triggering criminal conduct, i. e., the offender's actual behavior or other offense-related circumstances; and (c) the offender's criminal history. See ; Cf. United States Sentencing Commission, Guidelines Manual ch. 1, pt. A, intro., n. 5 (USSG) (empirical study of "summary reports of some 40,000 convictions [and] a sample of 10,000 augmented presentence reports" leads to sentences based primarily upon (a) offense characteristics and (b) offender's criminal record); see p. s. 3. *38 In the Court held constitutional (a) a sentence of life imprisonment with parole available within 10 to 12 years, (b) for the offense of obtaining $120 by false pretenses, (c) committed by an offender with two prior felony convictions (involving small amounts of money). ; ante, at 21. In the Court held unconstitutional (a) a sentence of life imprisonment without parole, (b) for the crime of writing a $100 check on a nonexistent bank account, (c) committed by an offender with six prior felony convictions (including three for burglary). ; ante, -23. Which of the three pertinent comparative factors made the constitutional difference? The third factor, prior record, cannot explain the difference. The offender's prior record was worse in where the Court found the sentence too long, than in where the Court upheld the sentence. The second factor, offense conduct, cannot explain the difference. The nature of the triggering offense — viewed in terms of the actual monetary loss — in the two cases was about the same. The one critical factor that explains the difference in the outcome is the length of the likely prison term measured in real time. In where the Court upheld the sentence, the state sentencing statute authorized parole for the offender, after 10 or 12 ; In where the Court struck down the sentence, the sentence required the offender, Helm, to spend the rest of his life in prison. Now consider the present case. The third factor, offender characteristics — i. e., prior record — does not differ significantly here from that in Ewing's prior record consists of four prior felony convictions (involving three burglaries, one with a knife) contrasted with Helm's six prior felony convictions (including three burglaries, though none with weapons). The second factor, offense behavior, is worse than that in but only to a degree. It would be difficult to say that the actual behavior itself here (shoplifting) *39 differs significantly from that at issue in (passing a bad check) or in (obtaining money through false pretenses). Rather the difference lies in the value of the goods obtained. That difference, measured in terms of the most relevant feature (loss to the victim, i. e., wholesale value) and adjusted for the irrelevant feature of inflation, comes down (in values) to about $379 here compared with $100 in or (in 1973 values) to $232 here compared with $120.75 in See USSG 2B1.1, comment., n. 2(A)(i) (Nov. 2002) (loss to victim properly measures value of goods unlawfully taken); U. S. Dept. of Labor, Bureau of Labor Statistics, Inflation and Consumer Spending, Inflation Calculator (Jan. 23, 2003), http://www.bls.gov (hereinafter Inflation Calculator). Alternatively, if one measures the inflation-adjusted value difference in terms of the golf clubs' sticker price, it comes down to $505 here compared to $100 in or $309 here compared to $120.75 in See Inflation Calculator. The difference in length of the real prison term — the first, and critical, factor in and — is considerably more important. Ewing's sentence here amounts, in real terms, to at least 25 years without parole or good-time credits. That sentence is considerably shorter than Helm's sentence in which amounted, in real terms, to life in prison. Nonetheless Ewing's real prison term is more than twice as long as the term at issue in which amounted, in real terms, to at least 10 or 12 And, Ewing's sentence, unlike 's (but like Helm's sentence in ), is long enough to consume the productive remainder of almost any offender's life. (It means that Ewing himself, seriously ill when sentenced at age 38, will likely die in prison.) The upshot is that the length of the real prison term — the factor that explains the / difference in outcome — places Ewing closer to than to though the greater value of the golf clubs that Ewing stole *40 moves Ewing's case back slightly in 's direction. Overall, the comparison places Ewing's sentence well within the twilight zone between and — a zone where the argument for unconstitutionality is substantial, where the cases themselves cannot determine the constitutional outcome. Second, Ewing's sentence on its face imposes one of the most severe punishments available upon a recidivist who subsequently engaged in one of the less serious forms of criminal conduct. See infra, at 44-45. I do not deny the seriousness of shoplifting, which an amicus curiae tells us costs retailers in the range of $30 billion annually. Brief for California District Attorneys Association as Amicus Curiae 27. But consider that conduct in terms of the factors that this Court mentioned in — the "harm caused or threatened to the victim or society," the "absolute magnitude of the crime," and the offender's "culpability." -293. In respect to all three criteria, the sentence-triggering behavior here ranks well toward the bottom of the criminal conduct scale. The Solicitor General has urged us to consider three other criteria: the "frequency" of the crime's commission, the "ease or difficulty of detection," and "the degree to which the crime may be deterred by differing amounts of punishment." Brief for United States as Amicus Curiae 24-25. When considered in terms of these criteria — or at least the latter two — the triggering conduct also ranks toward the bottom of the scale. Unlike, say, drug crimes, shoplifting often takes place in stores open to other customers whose presence, along with that of store employees or cameras, can help to detect the crime. Nor is there evidence presented here that the law enforcement community believes lengthy prison terms necessary adequately to deter shoplifting. To the contrary, well-publicized instances of shoplifting suggest that the offense is often punished without any prison sentence at all. On the other hand, shoplifting is a frequently committed *41 crime; but "frequency," standing alone, cannot make a critical difference. Otherwise traffic offenses would warrant even more serious punishment. This case, of course, involves shoplifting engaged in by a recidivist. One might argue that any crime committed by a recidivist is a serious crime potentially warranting a 25-year sentence. But this Court rejected that view in and in with the recognition that "no penalty is per se constitutional." ; Our cases make clear that, in cases involving recidivist offenders, we must focus upon "the [offense] that triggers the life sentence," with recidivism playing a "relevant," but not necessarily determinative, role. ; see And here, as I have said, that offense is among the less serious, while the punishment is among the most serious. Cf. (overtime parking violation cannot trigger a life sentence even for a serious recidivist). Third, some objective evidence suggests that many experienced judges would consider Ewing's sentence disproportionately harsh. The United States Sentencing Commission (having based the federal Sentencing Guidelines primarily upon its review of how judges had actually sentenced offenders) does not include shoplifting (or similar theft-related offenses) among the crimes that might trigger especially long sentences for recidivists, see USSG 4B1.1 (Nov. 2002) (Guideline for sentencing "career offenders"); ch. 1, pt. A, intro., n. 5 (sentences based in part upon Commission's review of "summary reports of some 40,000 convictions [and] a sample of 10,000 augmented presentence reports"); see also * infra, at 45, nor did Congress include such offenses among triggering crimes when it sought sentences "at or near the statutory maximum" for certain recidivists, S. Rep. No. 98-225, p. 175 ; 28 U.S. C. 994(h) (requiring sentence "at or near the maximum" where triggering crime is crime of "violence" or drug related); 18 U.S. C. 3559(c) (grand theft not among triggering or "strike" offenses under federal "three strikes" law); see infra, at 45-46. But see 28 U.S. C. 994(i)(1) (requiring "a substantial term of imprisonment" for those who have "a history of two or more prior felony convictions"). Taken together, these three circumstances make clear that Ewing's "gross disproportionality" argument is a strong one. That being so, his claim must pass the "threshold" test. If it did not, what would be the function of the test? A threshold test must permit arguably unconstitutional sentences, not only actually unconstitutional sentences, to pass the threshold — at least where the arguments for unconstitutionality are unusually strong ones. A threshold test that blocked every ultimately invalid constitutional claim — even strong ones — would not be a threshold test but a determinative test. And, it would be a determinative test that failed to take account of highly pertinent sentencing information, namely, comparison with other sentences, Sentencing comparisons are particularly important because they provide proportionality review with objective content. By way of contrast, a threshold test makes the assessment of constitutionality highly subjective. And, of course, so to transform that threshold test would violate this Court's earlier precedent. See 463 U.S., 291-292; Believing Ewing's argument a strong one, sufficient to pass the threshold, I turn to the comparative analysis. A *43 comparison of Ewing's sentence with other sentences requires answers to two questions. First, how would other jurisdictions (or California at other times, i. e., without the three strikes penalty) punish the same offense conduct? Second, upon what other conduct would other jurisdictions (or California) impose the same prison term? Moreover, since hypothetical punishment is beside the point, the relevant prison time, for comparative purposes, is real prison time, i. e., the time that an offender must actually serve. Sentencing statutes often shed little light upon real prison time. That is because sentencing laws normally set maximum sentences, giving the sentencing judge discretion to choose an actual sentence within a broad range, and because many States provide good-time credits and parole, often permitting release after, say, one-third of the sentence has been served, see, e. g., Alaska Stat. 33.20.010(a) ; Conn. Gen. Stat. 18-7a (1). Thus, the statutory maximum is rarely the sentence imposed, and the sentence imposed is rarely the sentence that is served. For the most part, the parties' briefs discuss sentencing statutes. Nonetheless, that discussion, along with other readily available information, validates my initial belief that Ewing's sentence, comparatively speaking, is extreme. As to California itself, we know the following: First, between the end of World War II and (when California enacted the three strikes law, ante, at 15), no one like Ewing could have served more than 10 years in prison. We know that for certain because the maximum sentence for Ewing's crime of conviction, grand theft, was for most of that period 10 Cal. Penal Code Ann. 484, 489 (West 1970); see Cal. Dept. of Corrections, Offender Information Services, Administrative Services Division, Historical Data for Time Served by Male Felons Paroled from Institutions: 1945 Through 1981, p. 11 (1982) (Table 10) (hereinafter Historical Data for Time Served by California Felons), Lodging of Petitioner. From 1976 to (and currently, absent application *44 of the three strikes penalty), a Ewing-type offender would have received a maximum sentence of four Cal. Penal Code Ann. 489 667.5(b) (West Supp. 2002). And we know that California's "habitual offender" laws did not apply to grand theft. 644(a), (b) (West 1970) (repealed 1977). We also know that the time that any offender actually served was likely far less than 10 This is because statistical data show that the median time actually served for grand theft (other than auto theft) was about two years, and 90 percent of all those convicted of that crime served less than three or four Historical Data for Time Served by California Felons 11 (Table 10). Second, statistics suggest that recidivists of all sorts convicted during that same time period in California served a small fraction of Ewing's real-time sentence. On average, recidivists served three to four additional (recidivist-related) years in prison, with 90 percent serving less than an additional real seven to eight Third, we know that California has reserved, and still reserves, Ewing-type prison time, i. e., at least 25 real years in prison, for criminals convicted of crimes far worse than was Ewing's. Statistics for the years 1945 to 1981, for example, indicate that typical (nonrecidivist) male first-degree murderers served between 10 and 15 real years in prison, with 90 percent of all such murderers serving less than 20 real Moreover, California, which has moved toward a real-time sentencing system (where the statutory punishment approximates the time served), still punishes far less harshly those who have engaged in far more serious conduct. It imposes, for example, upon nonrecidivists guilty of arson causing great bodily injury a maximum sentence of nine years in prison, Cal. Penal Code Ann. 451(a) (prison term of 5, 7, or 9 years for arson that causes great bodily injury); it imposes upon those guilty of voluntary manslaughter a maximum sentence of 11 years, 193 (prison term of 3, 6, or 11 years for voluntary manslaughter). *45 It reserves the sentence that it here imposes upon (former-burglar-now-golf-club-thief) Ewing for nonrecidivist, first-degree murderers. See 190(a) (West Supp. 2003) (sentence of 25 years to life for first-degree murder). As to other jurisdictions, we know the following: The United States, bound by the federal Sentencing Guidelines, would impose upon a recidivist, such as Ewing, a sentence that, in any ordinary case, would not exceed 18 months in prison. USSG 2B1.1(a) (assuming a base offense level of 6, a criminal history of VI, and no mitigating or aggravating adjustments); ch. 5, pt. A, Sentencing Table. The Guidelines, based in part upon a study of some 40,000 actual federal sentences, see 7, 41, reserve a Ewing-type sentence for Ewing-type recidivists who currently commit such crimes as murder, 2A1.2; air piracy, 2A5.1; robbery (involving the discharge of a firearm, serious bodily injury, and about $1 million), 2B3.1; drug offenses involving more than, for example, 20 pounds of heroin, 2D1.1; aggravated theft of more than $100 million, 2B1.1; and other similar offenses. The Guidelines reserve 10 years of real prison time (with good time) — less than 40 percent of Ewing's sentence — for Ewing-type recidivists who go on to commit, for instance, voluntary manslaughter, 2A1.3; aggravated assault with a firearm (causing serious bodily injury and motivated by money), 2A2.2; kidnaping, 2A4.1; residential burglary involving more than $5 million, 2B2.1; drug offenses involving at least one pound of cocaine, 2D1.1; and other similar offenses. Ewing also would not have been subject to the federal "three strikes" law, 18 U.S. C. 3559(c), for which grand theft is not a triggering offense. With three exceptions, see infra, at 46-47, we do not have before us information about actual time served by Ewing-type offenders in other States. We do know, however, that the law would make it legally impossible for a Ewing-type offender to serve more than 10 years in prison in 33 jurisdictions, as well as the federal courts, see Appendix, *46 Part A, infra, more than 15 years in 4 other States, see Appendix, Part B, infra, and more than 20 years in 4 additional States, see Appendix, Part C, infra. In nine other States, the law might make it legally possible to impose a sentence of 25 years or more, see Appendix, Part D, infra — though that fact by itself, of course, does not mean that judges have actually done so. But see infra this page. I say "might" because the law in five of the nine last mentioned States restricts the sentencing judge's ability to impose a term so long that, with parole, it would amount to at least 25 years of actual imprisonment. See Appendix, Part D, infra. We also know that California, the United States, and other States supporting California in this case, despite every incentive to find someone else like Ewing who will have to serve, or who has actually served, a real prison term anywhere approaching that imposed upon Ewing, have come up with precisely three examples. Brief for United States as Amicus Curiae 28-29, n. 13. The Government points to Ex parte Howington, where an Alabama court sentenced an offender with three prior burglary convictions and two prior grand theft convictions to "life" for the theft of a tractor-trailer. The Government also points to where a South Dakota court sentenced an offender with seven prior felony convictions to 50 years' imprisonment for theft. And the Government cites where a Nevada court sentenced a defendant with three prior felony convictions (including armed robbery) and nine misdemeanor convictions to life without parole for the theft of a purse and wallet containing $476. The first of these cases, Howington, is beside the point, for the offender was eligible for parole after 10 years (as in ), not 25 years (as here). Ala. Code 15-22-28(e) (West 1982). The second case, Heftel, is factually on point, but it is not legally on point, for the South Dakota courts did not consider the constitutionality of the sentence. 513 N. W. *47 2d, at 401. The third case, Sims, is on point both factually and legally, for the Nevada Supreme Court (by a vote of 3 to 2) found the sentence constitutional. I concede that example — a single instance of a similar sentence imposed outside the context of California's three strikes law, out of a prison population now approaching two million individuals. U. S. Dept. of Justice, Office of Justice Programs, Bureau of Justice Statistics, Prison Statistics (Jan. 8, 2003), http://www.ojp.usdoj.gov/bjs/prisons.htm (available in Clerk of Court's case file). The upshot is that comparison of other sentencing practices, both in other jurisdictions and in California at other times (or in respect to other crimes), validates what an initial threshold examination suggested. Given the information available, given the state and federal parties' ability to provide additional contrary data, and given their failure to do so, we can assume for constitutional purposes that the following statement is true: Outside the California three strikes context, Ewing's recidivist sentence is virtually unique in its harshness for his offense of conviction, and by a considerable degree. IV This is not the end of the matter. California sentenced Ewing pursuant to its "three strikes" law. That law represents a deliberate effort to provide stricter punishments for recidivists. Cal. Penal Code Ann. 667(b) ("It is the intent of the Legislature to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses"); ante, at 24. And, it is important to consider whether special criminal justice concerns related to California's three strikes policy might justify including Ewing's theft within the class of triggering criminal conduct (thereby imposing a severe punishment), even if Ewing's sentence would otherwise seem disproportionately harsh. *48 Cf. 501 U. S., at -999, 1001 I can find no such special criminal justice concerns that might justify this sentence. The most obvious potential justification for bringing Ewing's theft within the ambit of the statute is administrative. California must draw some kind of workable line between conduct that will trigger, and conduct that will not trigger, a "three strikes" sentence. "But the fact that a line has to be drawn somewhere does not justify its being drawn anywhere." The statute's administrative objective would seem to be one of separating more serious, from less serious, triggering criminal conduct. Yet the statute does not do that job particularly well. The administrative line that the statute draws separates "felonies" from "misdemeanors." See Brief for Respondent 6 ("The California statute relies, fundamentally, on traditional classifications of certain crimes as felonies"). Those words suggest a graduated difference in degree. But an examination of how California applies these labels in practice to criminal conduct suggests that the offenses do not necessarily reflect those differences. See United (felony/misdemeanor distinction often reflects history, not logic); Indeed, California uses those words in a way unrelated to the seriousness of offense conduct in a set of criminal statutes called "`wobblers,'" see ante, at 16, one of which is at issue in this case. Most "wobbler" statutes classify the same criminal conduct either as a felony or as a misdemeanor, depending upon *49 the actual punishment imposed, Cal. Penal Code Ann. 17(a), (b) ; ante, at 16-17, which in turn depends primarily upon whether "the rehabilitation of the convicted defendant" either does or does not "require" (or would or would not "be adversely affected by") "incarceration in a state prison as a felon." In re Anderson, ; ante, at 29. In such cases, the felony/misdemeanor classification turns primarily upon the nature of the offender, not the comparative seriousness of the offender's conduct. A subset of "wobbler" statutes, including the "petty theft with a prior" statute, Cal. Penal Code Ann. 666 (West Supp. 2002), defining the crime in the companion case, Lockyer v. Andrade, post, p. 63, authorizes the treatment of otherwise misdemeanor conduct, see Cal. Penal Code Ann. 490 as a felony only when the offender has previously committed a property crime. Again, the distinction turns upon characteristics of the offender, not the specific offense conduct at issue. The result of importing this kind of distinction into California's three strikes statute is a series of anomalies. One anomaly concerns the seriousness of the triggering behavior. "Wobbler" statutes cover a wide variety of criminal behavior, ranging from assault with a deadly weapon, 245, vehicular manslaughter, 193(c)(1), and money laundering, 186.10(a), to the defacement of property with graffiti, 594(b)(2)(A) (West Supp. 2002), or stealing more than $100 worth of chickens, nuts, or avocados, 487(b)(1)(A) (West Supp. 2003); 489 Some of this behavior is obviously less serious, even if engaged in twice, than other criminal conduct that California statutes classify as pure misdemeanors, such as reckless driving, Cal. Veh. Code Ann. 23103 (West Supp. 2003); 23104(a) (reckless driving causing bodily injury), the use of force or threat of force to interfere with another's civil rights, Cal. Penal Code *50 Ann. 2.6 selling poisoned alcohol, 347b, child neglect, 270, and manufacturing or selling false government documents with the intent to conceal true citizenship, 112(a) (West Supp. 2002). Another anomaly concerns temporal order. An offender whose triggering crime is his third crime likely will not fall within the ambit of the three strikes statute provided that (a) his first crime was chicken theft worth more than $100, and (b) he subsequently graduated to more serious crimes, say, crimes of violence. That is because such chicken theft, when a first offense, will likely be considered a misdemeanor. A similar offender likely will fall within the scope of the three strikes statute, however, if such chicken theft was his third crime. That is because such chicken theft, as a third offense, will likely be treated as a felony. A further anomaly concerns the offender's criminal record. California's "wobbler" "petty theft with a prior" statute, at issue in Lockyer v. Andrade, post, p. 63, classifies a petty theft as a "felony" if, but only if, the offender has a prior record that includes at least one conviction for certain theft-related offenses. Cal. Penal Code Ann. 666 (West Supp. 2002). Thus a violent criminal who has committed two violent offenses and then steals $200 will not fall within the ambit of the three strikes statute, for his prior record reveals no similar property crimes. A similar offender will fall within the scope of the three strikes statute, however, if that offender, instead of having committed two previous violent crimes, has committed one previous violent crime and one previous petty theft. (Ewing's conduct would have brought him within the realm of the petty theft statute prior to 1976 but for inflation.) At the same time, it is difficult to find any strong need to define the lower boundary as the State has done. The three strikes statute itself, when defining prior "strikes," simply lists the kinds of serious criminal conduct that falls within the definition of a "strike." 667.5(c) (listing "violent" felonies); *51 1192.7(c) (West Supp. 2003) (listing "serious" felonies). There is no obvious reason why the statute could not enumerate, consistent with its purposes, the relevant triggering crimes. Given that possibility and given the anomalies that result from California's chosen approach, I do not see how California can justify on administrative grounds a sentence as seriously disproportionate as Ewing's. See Parts II and Neither do I see any other way in which inclusion of Ewing's conduct (as a "triggering crime") would further a significant criminal justice objective. One might argue that those who commit several property crimes should receive long terms of imprisonment in order to "incapacitate" them, i. e., to prevent them from committing further crimes in the future. But that is not the object of this particular three strikes statute. Rather, as the plurality says, California seeks "`to reduce serious and violent crime.'" Ante, at 24 ). The statute's definitions of both kinds of crime include crimes against the person, crimes that create danger of physical harm, and drug crimes. See, e. g., Cal. Penal Code Ann. 667.5(c)(1) (West Supp. 2002), 1192.7(c)(1) (West Supp. 2003) (murder or voluntary manslaughter); 667.5(c)(21) (West Supp. 2002), 1192.7(c)(18) (West Supp. 2003) (first-degree burglary); 1192.7(c)(24) (selling or giving or offering to sell or give heroin or cocaine to a minor). They do not include even serious crimes against property, such as obtaining large amounts of money, say, through theft, embezzlement, or fraud. Given the omission of vast categories of property crimes — including grand theft (unarmed) — from the "strike" definition, one cannot argue, on property-crime-related incapacitation grounds, for inclusion of Ewing's crime among the triggers. Nor do the remaining criminal law objectives seem relevant. No one argues for Ewing's inclusion within the ambit *52 of the three strikes statute on grounds of "retribution." Cf. Vitiello, Three Strikes: Can We Return to Rationality? 87 J. Crim. L. & C. 395, 7 (1997) (California's three strikes law, like other "[h]abitual offender statutes[, is] not retributive" because the term of imprisonment is "imposed without regard to the culpability of the offender or [the] degree of social harm caused by the offender's behavior," and "has little to do with the gravity of the offens[e]"). For reasons previously discussed, in terms of "deterrence," Ewing's 25-year term amounts to overkill. See Parts II and And "rehabilitation" is obviously beside the point. The upshot is that, in my view, the State cannot find in its three strikes law a special criminal justice need sufficient to rescue a sentence that other relevant considerations indicate is unconstitutional. V JUSTICE SCALIA and JUSTICE THOMAS argue that we should not review for gross disproportionality a sentence to a term of Ante, 1 (SCALIA, J., concurring in judgment); ante, 2 (THOMAS, J., concurring in judgment). Otherwise, we make it too difficult for legislators and sentencing judges to determine just when their sentencing laws and practices pass constitutional muster. I concede that a bright-line rule would give legislators and sentencing judges more guidance. But application of the Eighth Amendment to a sentence of a term of years requires a case-by-case approach. And, in my view, like that of the plurality, meaningful enforcement of the Eighth Amendment demands that application — even if only at sentencing's outer bounds. A case-by-case approach can nonetheless offer guidance through example. Ewing's sentence is, at a minimum, 2 to 3 times the length of sentences that other jurisdictions would impose in similar circumstances. That sentence itself is sufficiently long to require a typical offender to spend virtually all the remainder of his active life in prison. These and the *53 other factors that I have discussed, along with the questions that I have asked along the way, should help to identify "gross disproportionality" in a fairly objective way — at the outer bounds of sentencing. In sum, even if I accept for present purposes the plurality's analytical framework, Ewing's sentence (life imprisonment with a minimum term of 25 years) is grossly disproportionate to the triggering offense conduct — stealing three golf clubs — Ewing's recidivism notwithstanding. For these reasons, I dissent. APPENDIX TO OPINION OF BREYER, J. A Thirty-three jurisdictions, as well as the federal courts, have laws that would make it impossible to sentence a Ewing-type offender to more than 10 years in prison:[1] Federal: 12 to 18 months. USSG 2B1.1 ; ch. 5, pt. A, Sentencing Table. Alaska: three to five years; presumptive term of three Alaska Stat. 11.46.130(a)(1), (c), 12.55.125(e) Arizona: four to six years; presumptive sentence of five Ariz. Rev. Stat. Ann. 13-604(C), 13-1802(E) (West 2001). Connecticut: 1 to 10 Conn. Gen. Stat. 53a-35a(6), 53a-40(j), 53a-124(a)(2) (2001). Delaware: not more than two Del. Code Ann., Tit. 11, 840(d) ; 05(b)(7) Recidivist offender penalty not applicable. See 14; District of Columbia: not more than 10 D. C. Code Ann. 22-3212(a) (West 2001). Recidivist offender penalty *54 not applicable. See 22-1804a(c)(2) (West 2001) (amended 2001). Florida: not more than 10 Fla. Stat. Ann. 775.084(1)(a), (4)(a)(3) (amended 2002); 812.014(c)(1) Georgia: 10 Ga. Code Ann. 16-8-12(a)(1) ; 17-10-7(a) Hawaii: 20 months. Haw. Rev. Stat. 708-831(1)(b), 706-606.5(1)(a)(iv), (7)(a) (Supp. 2001). Idaho: 1 to 14 Idaho Code 18-2403, 18-2407(b)(1), 18-2408(2)(a) (1948-1997). Recidivist/habitual offender penalty of five years to life in prison, 19-2514, likely not applicable. Idaho has a general rule that "`convictions entered the same day or charged in the same information should count as a single conviction for purposes of establishing habitual offender status.'" However, "the nature of the convictions in any given situation must be examined to make certain that [this] general rule is appropriate." In this case, Ewing's prior felony convictions stemmed from acts committed at the same apartment complex, and three of the four felonies were committed within a day of each other; the fourth offense was committed five weeks earlier. See App. 6; Tr. 45-46 (Information, Case No. NA018343-01 (Cal. Super. Ct.) (available in Clerk of Court's case file)). A review of Idaho case law suggests that this case is factually distinguishable from cases in which the Idaho courts have declined to adhere to the general rule. See, e. g., 43, ; ; Illinois: two to five Ill. Comp. Stat., ch. 730, 5/ 5-8-1(a)(6) (Supp. 2001); ch. 720, 5/16-1(b)(4). Recidivist offender penalty not applicable. 5/33B-1(a) Indiana: 18 months (with not more than 18 months added for aggravating circumstances). Ind. Code 35-43-4-2(a) ; 35-50-2-7(a). Recidivist offender penalty not applicable. See 35-50-2-8 (amended 2001). Iowa: three to five Iowa Code Ann. 714.2(2), 902.9(5) (West Supp. 2002); 902.8 Kansas: 9 to 11 months. Kan. Stat. Ann. 21-3701(b)(2), 21-4704(a) Recidivist offender penalty not applicable. See 21-4504(e)(3). Kentucky: 5 to 10 Ky. Rev. Stat. Ann. 514.030(2) (Lexis Supp. 2002); 532.060(2)(c), (d), 532.080(2), (5) Maine: less than one year. Me. Rev. Stat. Ann., Tit. 17-A, 353 ; 362(4)(B) (amended 2001); 1252(2)(D) (West 1983 and Supp. 2002). Recidivist offender penalty not applicable. See 1252(4-A) (amended 2001). Massachusetts: not more than five Mass. Gen. Laws, ch. 266, 30(1) Recidivist offender penalty not applicable. See ch. 279, 25 (West 1); Minnesota: not more than five Minn. Stat. 609.52, subd. 3(3)(a) (2002). Recidivist offender penalty not applicable. See 609.1095, subd. 2. Mississippi: not more than five Miss. Code Ann. 97-17-41(1)(a) Recidivist offender penalty not applicable. See 99-19-81. Nebraska: not more than five Neb. Rev. Stat. 28-105(1) (2000 Cum. Supp.); 28-518(2) Recidivist offender penalty not applicable. See 29-2221(1). *56 New Jersey: Extended term of between 5 to 10 years ), 2C:43-7(a)(4) (Supp. 2002), whether offense is treated as theft, 2C:20-2(b)(2)(a), or shoplifting, 2C:20-11(b), (c)(2), because, even if Ewing's felonies are regarded as one predicate crime, Ewing has been separately convicted and sentenced for at least one other crime for which at least a 6-month sentence was authorized, 2C:44-3(a); 2C:44-4(c) New Mexico: 30 months. N. M. Stat. Ann. 30-16-20(B)(3) ; 31-18-15(A)(6) ; 31-18-17(B) (amended 2002). New York: three to four N. Y. Penal Law 70.06(3)(e) (West 1); 155.30 North Carolina: 4 to 25 months (with exact sentencing range dependent on details of offender's criminal history). N. C. Gen. Stat. 15A-1340.14, 15A-1340.17(c), (d), 14-72(a) (2001). Recidivist offender penalty not applicable. See 14-7.1, 14-7.6. North Dakota: not more than 10 N. D. Cent. Code 12.1-23-05(2)(a) (1997); 12.1-32-09(1), (2)(c) (1997) (amended 2001). Ohio: 6 to 12 months. Ohio Rev. Code Ann. 2913.02(B)(2), 2929.14(A)(5) (West Supp. 2002). No general recidivist statute. Oregon: not more than five Ore. Rev. Stat. 161.605 (1997); Ore. Rev. Stat. Ann. 164.055(1)(a), (3) (Supp. 1). No general recidivist statute. Pennsylvania: not more than five years (if no more than one prior theft was "retail theft"); otherwise, not more than seven Pa. Stat. Ann., Tit. 18, 1103(3), 1104(1) (Purdon 1); 3903(b), 3929(b)(1)(iii)-(iv) (Purdon Supp. 2002); 3921 Recidivist offender penalty not applicable. See Pa. Cons. Stat. 9714(a)(1) (1). *57 Rhode Island: not more than 10 R. I. Gen. Laws 11-41-5(a) (2002). Recidivist offender penalty not applicable. See 12-19-21(a). South Carolina: not more than five S. C. Code Ann. 16-13-30, XX-XX-XXX(B)(2) (West 2001 Cum. Supp.). Recidivist offender penalty not applicable. See 17-25-45. Tennessee: four to eight Tenn. Code Ann. 39-14-105(3), 40-35-106(a)(1), (c), 40-35-112(b)(4) (1997). Utah: not more than five Utah Code Ann. 76-3-203(3) ; 76-6-412(1)(b)(i) Recidivist offender penalty not applicable. See 76-3-203.5 (Supp. 2002). Washington: not more than 14 months (with exact sentencing range dependent on details of offender score), Wash. Rev. Code 9A.56.040(1)(a), (2) ; 9.94A.510(1), 9.94A.515, 9.94A.525 (2003 Supp. Pamphlet); maximum sentence of five years, 9A.56.040(1)(a), (2), 9A.20.021(1)(c) Recidivist offender penalty not applicable. See 9.94A.030(27), (31) ; 9.94A.570 (2003 Supp. Pamphlet). Wyoming: not more than 10 Wyo. Stat. Ann. 6-3-404(a)(i) (Michie 2001). Recidivist offender penalty not applicable. See 6-10-201(a). B In four other States, a Ewing-type offender could not have received a sentence of more than 15 years in prison: Colorado: 4 to 12 years for "extraordinary aggravating circumstances" (e. g., defendant on parole for another felony at the time of commission of the triggering offense). Colo. Rev. Stat. 18-1-105(1)(a)(V)(A), 18-1-105(9)(a)(II), 18-4-401(2)(c) (2002). Recidivist offender penalty not applicable. See 16-13-101(f)(1.5), (2) (2001). Maryland: not more than 15 Md. Ann. Code, Art. 27, 3(f)(1) (repealed 2002). Recidivist offender penalty not applicable. See 643B. *58 New Hampshire: not more than 15 N. H. Stat. Ann. 637:11(I)(a), 651:2(II)(a) (West Supp. 2002). Recidivist offender penalty not applicable. See 651:6(I)(c). Wisconsin: not more than 11 years (at the time of Ewing's offense). Wis. Stat. Ann. 939.50(3)(e) (West Supp. 2002); 939.62(1)(b), (2), 943.20(3)(b) (amended 2001). Wisconsin subsequently amended the relevant statutes so that a Ewing-type offender would only be eligible for a sentence of up to three See 939.51(3)(a), 943.20(3)(a), 939.62(1)(a) (West Supp. 2003). And effective February 1, 2003, such an offender is eligible for a sentence of only up to two See 939.51(3)(a), 943.20(3)(a), 939.62(1)(a). C In four additional States, a Ewing-type offender could not have been sentenced to more than 20 years in prison: Arkansas: 3 to 20 Ark. Code Ann. 5-36-103(b)(2)(A) (1997); 5-4-501(a)(2)(D), (e)(1) (1997) (amended 2001). Eligible for parole after serving one-third of the sentence. 5-4-501 (1997); 16-93-608 Missouri: not more than 20 Mo. Rev. Stat.016(7)(3) ; 570.030(3)(1) (amended 2002). Eligible for parole after 15 years at the latest.011(4)(1)(c). Texas: 2 to 20 Tex. Penal Code Ann. 12.33(a), 12.35(c)(2)(A) ; 12.(a)(3), 31.03(e)(4)(D) (Supp. 2003). Eligible for parole after serving one-fourth of sentence. Tex. Govt. Code Ann. 508.145(f) (Supp. 2003). Virginia: statutory range of 1 to 20 years (or less than 12 months at the discretion of the jury or court following bench trial), Va. Code Ann. 18.2-95 (Supp. 2002), but discretionary sentencing guideline ranges established by the Virginia Sentencing Commission, 17.1-805, 19.2-298.01 with a maximum of 6 years, 3 months, to 15 years, 7 months, see Virginia Criminal Sentencing Commission, Virginia Sentencing Guidelines Manual, Larceny — Section C Recommendation *59 Table (6th ed. 2002) (with petitioner likely falling within the discretionary guideline range of 2 years, 1 month, to 5 years, 3 months, see Brief for Petitioner 33, n. 25). Recidivist offender penalty not applicable. See 19.2-297.1 D In nine other States, the law might make it legally possible to impose a sentence of 25 years or more upon a Ewing-type offender. But in five of those nine States,[2] the offender would be parole-eligible before 25 years: Alabama: "life or any term of not less than 20 " Ala. Code 13A-5-9(c)(2) (Lexis Supp. 2002); 13A-8-3(a), (c) Eligible for parole after the lesser of one-third of the sentence or 10 15-22-28(e) Louisiana: Louisiana courts could have imposed a sentence of life without the possibility of parole at the time of Ewing's offense. La. Stat. Ann. 14:67.10(B)(1), 14:2(4), (13)(y) (West Supp. 2003); 15:529.1(A)(1)(b)(ii) and (c)(i)-(ii) (West 1992) (amended 2001). Petitioner argues that, despite the statutory authority to impose such a sentence, Louisiana courts would have carefully scrutinized his life sentence, as they had in other cases involving recidivists charged with a nonviolent crime. Brief for Petitioner 35-36, n. 29; see Brief for Families Against Mandatory Minimums as Amicus Curiae 24-25, and n. 21; State v. Hayes, 98-6, p. 4 (La. App. 6/25/99), (holding that a life sentence was impermissibly excessive for a defendant convicted of theft of over $1,000, who had a prior robbery conviction). But see Brief for Respondent 45-46, n. 12 (contesting petitioner's argument). Louisiana has amended its recidivist statute to require that the triggering offense be a violent felony, and that the offender have at least two prior violent felony convictions to be eligible for a life sentence. La. Stat. *60 Ann. 15:529.1(A)(1)(b)(ii) (West Supp. 2003). Under current law, a Ewing-type offender would face a sentence of 6 2/3 to 20 14:67.10(B)(1), 15:529.1(A)(b)(i). Michigan: "imprisonment for life or for a lesser term," Mich. Comp. Laws Ann. 769.12(1)(a) (instead of "not more than 15 years," 769.12(1)(b), as petitioner contends, see Brief for Petitioner 34, n. 26; Brief for Families Against Mandatory Minimums as Amicus Curiae 16-17, n. 15, 22-23, n. 20), because the triggering offense is "punishable upon a first conviction by imprisonment for a maximum term of 5 years or more," 769.12(1)(a) The larceny for which Ewing was convicted was, under Michigan law, "a felony punishable by imprisonment for not more than 5 " 750.356(3)(a) (West Supp. 2002). Eligible for parole following minimum term set by sentencing judge. 769.12(4) Montana: 5 to 100 Mont. Code Ann. 45-6-301(7)(b) ; 46-18-501, 46-18-502(1) (2001). A Ewing-type offender would not have been subject to a minimum term of 10 years in prison (as the State suggests, Brief for Respondent 44) because Ewing does not meet the requirements of 46-18-502(2) (must be a "persistent felony offender," as defined in 46-18-501, at the time of the offender's previous felony conviction). See Reply Brief for Petitioner 18, n. 14. Eligible for parole after one-fourth of the term. 46-23-201(2). Nevada: "life without the possibility of parole," or "life with the possibility of parole [after serving] 10 years," or "a definite term of 25 years, with eligibility for parole [after serving] 10 " Nev. Rev. Stat. 207.010(1)(b)(1)-(3) Oklahoma: not less than 20 years (at the time of Ewing's offense). Okla. Stat., Tit. 21, 51.1(B) (amended in 2001 to four years to life, 51.1(C) (West 2001)); 1704 (amended 2001). Eligible for parole after serving one-third of sentence. Tit. 57, 332.7(B) (West *61 2001). Thus, assuming a sentence to a term of years of up to 100 years (as in Montana, see ), parole eligibility could arise as late as after 33 South Dakota: maximum penalty of life imprisonment, with no minimum term. S. D. Codified Laws 22-7-8 (1); 22-30A-17(1) (Supp. 2002). Eligible for parole after serving one-half of sentence. 24-15-5(3) (1). Thus, assuming a sentence to a term of years of up to 100 years (as in Montana, see ), parole eligibility could arise as late as after 50 Vermont: "up to and including life," Vt. Stat. Ann., Tit. 13, 11 (1), or not more than 10 years, 2501; Eligible for parole after six months. Tit. 28, 501 (amended 2001). West Virginia: Petitioner contends that he would only have been subject to a misdemeanor sentence of not more than 60 days for shoplifting, W. Va. Code 61-3A-1, 61-3A-3(a)(2) ; Brief for Petitioner 31, n. 19, 33-34, n. 25. However, a Ewing-type offender could have been charged with grand larceny, see State ex rel. a felony punishable by imprisonment in the state penitentiary for 1 to 10 years (or, at the discretion of the trial court, not more than 1 year in jail). 61-3-13(a). Under West Virginia's habitual offender statute, a felon "twice before convicted of a crime punishable by confinement in a penitentiary shall be sentenced to life [imprisonment]," 61-11-18(c), with parole eligibility after 15 years, 62-12-13(c). Amicus curiae on behalf of petitioner notes that, in light of existing state-law precedents, West Virginia courts "would not countenance a sentence of life without the possibility of parole for 25 years for shoplifting golf clubs." Brief for Families Against Mandatory Minimums as Amicus *62 Curiae 25-26 ; and 178 W. Va. 1, -147, ). But see Brief for Respondent 45, n. 11 (contesting that argument).

Justice Alito

majority

Holt v. Hobbs

2015-01-20

https://www.courtlistener.com/opinion/2771249/holt-v-hobbs/

https://www.courtlistener.com/api/rest/v3/clusters/2771249/

2014-003

Petitioner Gregory Holt, also known as Abdul Maalik Muhammad, is an Arkansas inmate and a devout Muslim who wishes to grow a 1⁄2-inch beard in accordance with his religious beliefs. Petitioner’s objection to shaving his beard clashes with the Arkansas Department of Correc- tion’s grooming policy, which prohibits inmates from growing beards unless they have a particular dermatologi- cal condition. We hold that the Department’s policy, as applied in this case, violates the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U.S. C. §2000cc et seq., which prohibits a state or local government from taking any action that substan- tially burdens the religious exercise of an institutionalized person unless the government demonstrates that the action constitutes the least restrictive means of furthering a compelling governmental interest. We conclude in this case that the Department’s policy substantially burdens petitioner’s religious exercise. 2 HOLT v. HOBBS Opinion of the Court Although we do not question the importance of the De- partment’s interests in stopping the flow of contraband and facilitating prisoner identification, we do doubt whether the prohibition against petitioner’s beard furthers its compelling interest about contraband. And we con- clude that the Department has failed to show that its policy is the least restrictive means of furthering its com- pelling interests. We thus reverse the decision of the United States Court of Appeals for the Eighth Circuit. I A Congress enacted RLUIPA and its sister statute, the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U.S. C. §2000bb et seq., “in order to provide very broad protection for religious liberty.” Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___, ___ (2014) (slip op., at 4). RFRA was enacted three years after our deci- sion in Employment Div., Dept. of Human Resources of Ore. v. Smith, 494 U.S. 872 (1990), which held that neu- tral, generally applicable laws that incidentally burden the exercise of religion usually do not violate the Free Exercise Clause of the First Amendment. Id., at 878–882. Smith largely repudiated the method of analysis used in prior free exercise cases like Wisconsin v. Yoder, 406 U.S. 205 (1972), and Sherbert v. Verner, 374 U.S. 398 (1963). In those cases, we employed a balancing test that consid- ered whether a challenged government action that sub- stantially burdened the exercise of religion was necessary to further a compelling state interest. See Yoder, supra, at 214, 219; Sherbert, supra, at 403, 406. Following our decision in Smith, Congress enacted RFRA in order to provide greater protection for religious exercise than is available under the First Amendment. See Hobby Lobby, supra, at ___ – ___ (slip op., at 5–6). RFRA provides that “[g]overnment shall not substantially Cite as: 574 U. S. ____ (2015) 3 Opinion of the Court burden a person’s exercise of religion even if the burden results from a rule of general applicability,” unless the government “demonstrates that application of the burden to the person––(1) is in furtherance of a compelling gov- ernmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S. C. §§2000bb–1(a), (b). In making RFRA applicable to the States and their subdivisions, Congress relied on Section 5 of the Fourteenth Amendment, but in City of Boerne v. Flores, 521 U.S. 507 (1997), this Court held that RFRA exceeded Congress’ powers under that provision. Id., at 532–536. Congress responded to City of Boerne by enacting RLUIPA, which applies to the States and their subdivi- sions and invokes congressional authority under the Spending and Commerce Clauses. See §2000cc–1(b). RLUIPA concerns two areas of government activity: Sec- tion 2 governs land-use regulation, §2000cc; and Section 3—the provision at issue in this case—governs religious exercise by institutionalized persons, §2000cc–1. Section 3 mirrors RFRA and provides that “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person––(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling govern- mental interest.” §2000cc–1(a). RLUIPA thus allows prisoners “to seek religious accommodations pursuant to the same standard as set forth in RFRA.” Gonzales v. O Centro Espírita Beneficente União do Vegetal, 546 U.S. 418, 436 (2006). Several provisions of RLUIPA underscore its expansive protection for religious liberty. Congress defined “reli- gious exercise” capaciously to include “any exercise of 4 HOLT v. HOBBS Opinion of the Court religion, whether or not compelled by, or central to, a system of religious belief.” §2000cc–5(7)(A). Congress mandated that this concept “shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” §2000cc–3(g). And Congress stated that RLUIPA “may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.” §2000cc–3(c). See Hobby Lobby, supra, at ___ – ___, ___ (slip op., at 6–7, 43). B Petitioner, as noted, is in the custody of the Arkansas Department of Correction and he objects on religious grounds to the Department’s grooming policy, which pro- vides that “[n]o inmates will be permitted to wear facial hair other than a neatly trimmed mustache that does not extend beyond the corner of the mouth or over the lip.” App. to Brief for Petitioner 11a. The policy makes no exception for inmates who object on religious grounds, but it does contain an exemption for prisoners with medical needs: “Medical staff may prescribe that inmates with a diagnosed dermatological problem may wear facial hair no longer than one quarter of an inch.” Ibid. The policy provides that “[f]ailure to abide by [the Department’s] grooming standards is grounds for disciplinary action.” Id., at 12a. Petitioner sought permission to grow a beard and, al- though he believes that his faith requires him not to trim his beard at all, he proposed a “compromise” under which he would grow only a 1⁄2-inch beard. App. 164. Prison officials denied his request, and the warden told him: “[Y]ou will abide by [Arkansas Department of Correction] policies and if you choose to disobey, you can suffer the consequences.” No. 5:11–cv–00164 (ED Ark., July 21, 2011), Doc. 13, p. 6 (Letter from Gaylon Lay to Gregory Cite as: 574 U. S. ____ (2015) 5 Opinion of the Court Holt (July 19, 2011)). Petitioner filed a pro se complaint in Federal District Court challenging the grooming policy under RLUIPA. We refer to the respondent prison officials collectively as the Department. In October 2011, the District Court granted petitioner a preliminary injunction and remanded to a Magistrate Judge for an evidentiary hearing. At the hearing, the Department called two witnesses. Both expressed the belief that inmates could hide contraband in even a 1⁄2-inch beard, but neither pointed to any instances in which this had been done in Arkansas or elsewhere. Both witnesses also acknowledged that inmates could hide items in many other places, such as in the hair on their heads or their clothing. In addition, one of the witnesses— Gaylon Lay, the warden of petitioner’s prison— testified that a prisoner who escaped could change his appearance by shaving his beard, and that a prisoner could shave his beard to disguise himself and enter a restricted area of the prison. Neither witness, however, was able to explain why these problems could not be ad- dressed by taking a photograph of an inmate without a beard, a practice followed in other prison systems. Lay voiced concern that the Department would be unable to monitor the length of a prisoner’s beard to ensure that it did not exceed one-half inch, but he acknowledged that the Department kept track of the length of the beards of those inmates who are allowed to wear a 1⁄4-inch beard for medi- cal reasons. As a result of the preliminary injunction, petitioner had a short beard at the time of the hearing, and the Magis- trate Judge commented: “I look at your particular circum- stance and I say, you know, it’s almost preposterous to think that you could hide contraband in your beard.” App. 155. Nevertheless, the Magistrate Judge recommended that the preliminary injunction be vacated and that peti- tioner’s complaint be dismissed for failure to state a claim 6 HOLT v. HOBBS Opinion of the Court on which relief can be granted. The Magistrate Judge emphasized that “the prison officials are entitled to defer- ence,” id., at 168, and that the grooming policy allowed petitioner to exercise his religion in other ways, such as by praying on a prayer rug, maintaining the diet required by his faith, and observing religious holidays. The District Court adopted the Magistrate Judge’s recommendation in full, and the Court of Appeals for the Eighth Circuit affirmed in a brief per curiam opinion, holding that the Department had satisfied its burden of showing that the grooming policy was the least restrictive means of furthering its compelling security interests. 509 Fed. Appx. 561 (2013). The Court of Appeals stated that “courts should ordinarily defer to [prison officials’] expert judgment” in security matters unless there is substantial evidence that a prison’s response is exaggerated. Id., at 562. And while acknowledging that other prisons allow inmates to maintain facial hair, the Eighth Circuit held that this evidence “does not outweigh deference owed to [the] expert judgment of prison officials who are more familiar with their own institutions.” Ibid. We entered an injunction pending resolution of petition- er’s petition for writ of certiorari, 571 U. S. ___ (2013), and we then granted certiorari, 571 U. S. ___ (2014). II Under RLUIPA, petitioner bore the initial burden of proving that the Department’s grooming policy implicates his religious exercise. RLUIPA protects “any exercise of religion, whether or not compelled by, or central to, a system of religious belief,” §2000cc–5(7)(A), but, of course, a prisoner’s request for an accommodation must be sin- cerely based on a religious belief and not some other moti- vation, see Hobby Lobby, 573 U. S., at ___, n. 28 (slip op., at 29, n. 28). Here, the religious exercise at issue is the growing of a beard, which petitioner believes is a dictate of Cite as: 574 U. S. ____ (2015) 7 Opinion of the Court his religious faith, and the Department does not dispute the sincerity of petitioner’s belief. In addition to showing that the relevant exercise of religion is grounded in a sincerely held religious belief, petitioner also bore the burden of proving that the De- partment’s grooming policy substantially burdened that exercise of religion. Petitioner easily satisfied that obliga- tion. The Department’s grooming policy requires petition- er to shave his beard and thus to “engage in conduct that seriously violates [his] religious beliefs.” Id., at ___ (slip op., at 32). If petitioner contravenes that policy and grows his beard, he will face serious disciplinary action. Because the grooming policy puts petitioner to this choice, it sub- stantially burdens his religious exercise. Indeed, the Department does not argue otherwise. The District Court reached the opposite conclusion, but its reasoning (adopted from the recommendation of the Magistrate Judge) misunderstood the analysis that RLUIPA demands. First, the District Court erred by concluding that the grooming policy did not substantially burden petitioner’s religious exercise because “he had been provided a prayer rug and a list of distributors of Islamic material, he was allowed to correspond with a religious advisor, and was allowed to maintain the required diet and observe religious holidays.” App. 177. In taking this approach, the District Court improperly imported a strand of reasoning from cases involving prisoners’ First Amend- ment rights. See, e.g., O’Lone v. Estate of Shabazz, 482 U.S. 342, 351–352 (1987); see also Turner v. Safley, 482 U.S. 78, 90 (1987). Under those cases, the availability of alternative means of practicing religion is a relevant consideration, but RLUIPA provides greater protection. RLUIPA’s “substantial burden” inquiry asks whether the government has substantially burdened religious exercise (here, the growing of a 1⁄2-inch beard), not whether the RLUIPA claimant is able to engage in other forms of 8 HOLT v. HOBBS Opinion of the Court religious exercise. Second, the District Court committed a similar error in suggesting that the burden on petitioner’s religious exer- cise was slight because, according to petitioner’s testi- mony, his religion would “credit” him for attempting to follow his religious beliefs, even if that attempt proved to be unsuccessful. RLUIPA, however, applies to an exer- cise of religion regardless of whether it is “compelled.” §2000cc–5(7)(A). Finally, the District Court went astray when it relied on petitioner’s testimony that not all Muslims believe that men must grow beards. Petitioner’s belief is by no means idiosyncratic. See Brief for Islamic Law Scholars as Amici Curiae 2 (“hadith requiring beards . . . are widely followed by observant Muslims across the various schools of Is- lam”). But even if it were, the protection of RLUIPA, no less than the guarantee of the Free Exercise Clause, is “not limited to beliefs which are shared by all of the mem- bers of a religious sect.” Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 715–716 (1981). III Since petitioner met his burden of showing that the Department’s grooming policy substantially burdened his exercise of religion, the burden shifted to the Department to show that its refusal to allow petitioner to grow a 1⁄2- inch beard “(1) [was] in furtherance of a compelling gov- ernmental interest; and (2) [was] the least restrictive means of furthering that compelling governmental inter- est.” §2000cc–1(a). The Department argues that its grooming policy repre- sents the least restrictive means of furthering a “ ‘broadly formulated interes[t],’ ” see Hobby Lobby, supra, at ___ (slip op., at 39) (quoting O Centro, 546 U.S., at 431), namely, the Department’s compelling interest in prison safety and security. But RLUIPA, like RFRA, contem- Cite as: 574 U. S. ____ (2015) 9 Opinion of the Court plates a “ ‘more focused’ ” inquiry and “ ‘requires the Gov- ernment to demonstrate that the compelling interest test is satisfied through application of the challenged law “to the person”––the particular claimant whose sincere exer- cise of religion is being substantially burdened.’ ” Hobby Lobby, 573 U. S., at ___ (slip op., at 39) (quoting O Centro, supra, at 430–431 (quoting §2000bb–1(b))). RLUIPA requires us to “ ‘scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants’ ” and “to look to the marginal interest in enforcing” the chal- lenged government action in that particular context. Hobby Lobby, supra, at ___ (slip op., at 39) (quoting O Centro, supra, at 431; alteration in original). In this case, that means the enforcement of the Department’s policy to prevent petitioner from growing a 1⁄2-inch beard. The Department contends that enforcing this prohibi- tion is the least restrictive means of furthering prison safety and security in two specific ways. A The Department first claims that the no-beard policy prevents prisoners from hiding contraband. The Depart- ment worries that prisoners may use their beards to con- ceal all manner of prohibited items, including razors, needles, drugs, and cellular phone subscriber identity module (SIM) cards. We readily agree that the Department has a compelling interest in staunching the flow of contraband into and within its facilities, but the argument that this interest would be seriously compromised by allowing an inmate to grow a 1⁄2-inch beard is hard to take seriously. As noted, the Magistrate Judge observed that it was “almost prepos- terous to think that [petitioner] could hide contraband” in the short beard he had grown at the time of the eviden- tiary hearing. App. 155. An item of contraband would have to be very small indeed to be concealed by a 1⁄2-inch 10 HOLT v. HOBBS Opinion of the Court beard, and a prisoner seeking to hide an item in such a short beard would have to find a way to prevent the item from falling out. Since the Department does not demand that inmates have shaved heads or short crew cuts, it is hard to see why an inmate would seek to hide contraband in a 1⁄2-inch beard rather than in the longer hair on his head. Although the Magistrate Judge dismissed the possibility that contraband could be hidden in a short beard, the Magistrate Judge, the District Court, and the Court of Appeals all thought that they were bound to defer to the Department’s assertion that allowing petitioner to grow such a beard would undermine its interest in suppressing contraband. RLUIPA, however, does not permit such unquestioning deference. RLUIPA, like RFRA, “makes clear that it is the obligation of the courts to consider whether exceptions are required under the test set forth by Congress.” O Centro, supra, at 434. That test requires the Department not merely to explain why it denied the exemption but to prove that denying the exemption is the least restrictive means of furthering a compelling govern- mental interest. Prison officials are experts in running prisons and evaluating the likely effects of altering prison rules, and courts should respect that expertise. But that respect does not justify the abdication of the responsibil- ity, conferred by Congress, to apply RLUIPA’s rigorous standard. And without a degree of deference that is tan- tamount to unquestioning acceptance, it is hard to swal- low the argument that denying petitioner a 1⁄2-inch beard actually furthers the Department’s interest in rooting out contraband. Even if the Department could make that showing, its contraband argument would still fail because the Depart- ment cannot show that forbidding very short beards is the least restrictive means of preventing the concealment of contraband. “The least-restrictive-means standard is Cite as: 574 U. S. ____ (2015) 11 Opinion of the Court exceptionally demanding,” and it requires the government to “sho[w] that it lacks other means of achieving its de- sired goal without imposing a substantial burden on the exercise of religion by the objecting part[y].” Hobby Lobby, supra, at ___ (slip op., at 40). “[I]f a less restrictive means is available for the Government to achieve its goals, the Government must use it.” United States v. Playboy Enter­ tainment Group, Inc., 529 U.S. 803, 815 (2000). The Department failed to establish that it could not satisfy its security concerns by simply searching petition- er’s beard. The Department already searches prisoners’ hair and clothing, and it presumably examines the 1⁄4-inch beards of inmates with dermatological conditions. It has offered no sound reason why hair, clothing, and 1⁄4-inch beards can be searched but 1⁄2-inch beards cannot. The Department suggests that requiring guards to search a prisoner’s beard would pose a risk to the physical safety of a guard if a razor or needle was concealed in the beard. But that is no less true for searches of hair, clothing, and 1⁄4-inch beards. And the Department has failed to prove that it could not adopt the less restrictive alternative of having the prisoner run a comb through his beard. For all these reasons, the Department’s interest in eliminating contraband cannot sustain its refusal to allow petitioner to grow a 1⁄2-inch beard. B The Department contends that its grooming policy is necessary to further an additional compelling interest, i.e., preventing prisoners from disguising their identities. The Department tells us that the no-beard policy allows secu- rity officers to identify prisoners quickly and accurately. It claims that bearded inmates could shave their beards and change their appearance in order to enter restricted areas within the prison, to escape, and to evade apprehension after escaping. 12 HOLT v. HOBBS Opinion of the Court We agree that prisons have a compelling interest in the quick and reliable identification of prisoners, and we acknowledge that any alteration in a prisoner’s appear- ance, such as by shaving a beard, might, in the absence of effective countermeasures, have at least some effect on the ability of guards or others to make a quick identification. But even if we assume for present purposes that the De- partment’s grooming policy sufficiently furthers its inter- est in the identification of prisoners, that policy still vio- lates RLUIPA as applied in the circumstances present here. The Department contends that a prisoner who has a beard when he is photographed for identification purposes might confuse guards by shaving his beard. But as peti- tioner has argued, the Department could largely solve this problem by requiring that all inmates be photographed without beards when first admitted to the facility and, if necessary, periodically thereafter. Once that is done, an inmate like petitioner could be allowed to grow a short beard and could be photographed again when the beard reached the 1⁄2-inch limit. Prison guards would then have a bearded and clean-shaven photo to use in making identi- fications. In fact, the Department (like many other States, see Brief for Petitioner 39) already has a policy of photo- graphing a prisoner both when he enters an institution and when his “appearance changes at any time during [his] incarceration.” Arkansas Department of Correction, Inmate Handbook 3–4 (rev. Jan. 2013). The Department argues that the dual-photo method is inadequate because, even if it might help authorities apprehend a bearded prisoner who escapes and then shaves his beard once outside the prison, this method is unlikely to assist guards when an inmate quickly shaves his beard in order to alter his appearance within the prison. The Department contends that the identification concern is particularly acute at petitioner’s prison, where inmates live in barracks and work in fields. Counsel for Cite as: 574 U. S. ____ (2015) 13 Opinion of the Court the Department suggested at oral argument that a pris- oner could gain entry to a restricted area by shaving his beard and swapping identification cards with an- other inmate while out in the fields. Tr. of Oral Arg. 28–30, 39–43. We are unpersuaded by these arguments for at least two reasons. First, the Department failed to show, in the face of petitioner’s evidence, that its prison system is so differ- ent from the many institutions that allow facial hair that the dual-photo method cannot be employed at its institu- tions. Second, the Department failed to establish why the risk that a prisoner will shave a 1⁄2-inch beard to disguise himself is so great that 1⁄2-inch beards cannot be allowed, even though prisoners are allowed to grow mustaches, head hair, or 1⁄4-inch beards for medical reasons. All of these could also be shaved off at a moment’s notice, but the Department apparently does not think that this possi- bility raises a serious security concern. C In addition to its failure to prove that petitioner’s pro- posed alternatives would not sufficiently serve its security interests, the Department has not provided an adequate response to two additional arguments that implicate the RLUIPA analysis. First, the Department has not adequately demonstrated why its grooming policy is substantially underinclusive in at least two respects. Although the Department denied petitioner’s request to grow a 1⁄2-inch beard, it permits prisoners with a dermatological condition to grow 1⁄4-inch beards. The Department does this even though both beards pose similar risks. And the Department permits inmates to grow more than a 1⁄2-inch of hair on their heads. With respect to hair length, the grooming policy provides only that hair must be worn “above the ear” and “no longer in the back than the middle of the nape of the 14 HOLT v. HOBBS Opinion of the Court neck.” App. to Brief for Petitioner 11a. Hair on the head is a more plausible place to hide contraband than a 1⁄2-inch beard—and the same is true of an inmate’s clothing and shoes. Nevertheless, the Department does not require inmates to go about bald, barefoot, or naked. Although the Department’s proclaimed objectives are to stop the flow of contraband and to facilitate prisoner identification, “[t]he proffered objectives are not pursued with respect to analo- gous nonreligious conduct,” which suggests that “those interests could be achieved by narrower ordinances that burdened religion to a far lesser degree.” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 546 (1993). In an attempt to demonstrate why its grooming policy is underinclusive in these respects, the Department empha- sizes that petitioner’s 1⁄2-inch beard is longer than the 1⁄4- inch beard allowed for medical reasons. But the Depart- ment has failed to establish (and the District Court did not find) that a 1⁄4-inch difference in beard length poses a meaningful increase in security risk. The Department also asserts that few inmates require beards for medical reasons while many may request beards for religious reasons. But the Department has not argued that denying petitioner an exemption is necessary to further a compel- ling interest in cost control or program administration. At bottom, this argument is but another formulation of the “classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for every- body, so no exceptions.” O Centro, 546 U.S., at 436. We have rejected a similar argument in analogous contexts, see ibid.; Sherbert, 374 U.S., at 407, and we reject it again today. Second, the Department failed to show, in the face of petitioner’s evidence, why the vast majority of States and the Federal Government permit inmates to grow 1⁄2-inch beards, either for any reason or for religious reasons, but Cite as: 574 U. S. ____ (2015) 15 Opinion of the Court it cannot. See Brief for Petitioner 24–25; Brief for United States as Amicus Curiae 28–29. “While not necessarily controlling, the policies followed at other well-run institu- tions would be relevant to a determination of the need for a particular type of restriction.” Procunier v. Martinez, 416 U.S. 396, 414, n. 14 (1974). That so many other prisons allow inmates to grow beards while ensuring prison safety and security suggests that the Department could satisfy its security concerns through a means less restrictive than denying petitioner the exemption he seeks. We do not suggest that RLUIPA requires a prison to grant a particular religious exemption as soon as a few other jurisdictions do so. But when so many prisons offer an accommodation, a prison must, at a minimum, offer persuasive reasons why it believes that it must take a different course, and the Department failed to make that showing here. Despite this, the courts below deferred to these prison officials’ mere say-so that they could not accommodate petitioner’s request. RLUIPA, however, demands much more. Courts must hold prisons to their statutory burden, and they must not “assume a plausible, less restrictive alternative would be ineffective.” Playboy Entertainment, 529 U.S., at 824. We emphasize that although RLUIPA provides substan- tial protection for the religious exercise of institutionalized persons, it also affords prison officials ample ability to maintain security. We highlight three ways in which this is so. First, in applying RLUIPA’s statutory standard, courts should not blind themselves to the fact that the analysis is conducted in the prison setting. Second, if an institution suspects that an inmate is using religious activity to cloak illicit conduct, “prison officials may ap- propriately question whether a prisoner’s religiosity, asserted as the basis for a requested accommodation, is authentic.” Cutter v. Wilkinson, 544 U.S. 709, 725, n. 13 16 HOLT v. HOBBS Opinion of the Court (2005). See also Hobby Lobby, 573 U. S., at ___, n. 28 (slip op., at 29, n. 28). Third, even if a claimant’s religious belief is sincere, an institution might be entitled to with- draw an accommodation if the claimant abuses the exemp- tion in a manner that undermines the prison’s compelling interests. IV In sum, we hold that the Department’s grooming policy violates RLUIPA insofar as it prevents petitioner from growing a 1⁄2-inch beard in accordance with his religious beliefs. The judgment of the United States Court of Ap- peals for the Eighth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 574 U. S. ____ (2015) 1 GINSBURG, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 13–6827 _________________ GREGORY HOUSTON HOLT, AKA ABDUL MAALIK MUHAMMAD, PETITIONER v. RAY HOBBS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION, ET AL.

Petitioner Gregory Holt, also known as Abdul Maalik Muhammad, is an Arkansas inmate and a devout Muslim who wishes to grow a 1⁄2-inch beard in accordance with his religious beliefs. Petitioner’s objection to shaving his beard clashes with the Arkansas Department of Correc- tion’s grooming policy, which prohibits inmates from growing beards unless they have a particular dermatologi- cal condition. We hold that the Department’s policy, as applied in this case, violates the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 114 Stat. 803, 42 U.S. C. et seq., which prohibits a state or local government from taking any action that substan- tially burdens the religious exercise of an institutionalized person unless the government demonstrates that the action constitutes the least restrictive means of furthering a compelling governmental interest. We conclude in this case that the Department’s policy substantially burdens petitioner’s religious exercise. 2 HOLT v. HOBBS Opinion of the Court Although we do not question the importance of the De- partment’s interests in stopping the flow of contraband and facilitating prisoner identification, we do doubt whether the prohibition against petitioner’s beard furthers its compelling interest about contraband. And we con- clude that the Department has failed to show that its policy is the least restrictive means of furthering its com- pelling interests. We thus reverse the decision of the United States Court of Appeals for the Eighth Circuit. I A Congress enacted RLUIPA and its sister statute, the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U.S. C. et seq., “in order to provide very broad protection for religious liberty.” Burwell v. Hobby Stores, Inc., 573 U. S. (2014) (slip op., at 4). RFRA was enacted three years after our deci- sion in Employment Div., Dept. of Human Resources of which held that neu- tral, generally applicable laws that incidentally burden the exercise of religion usually do not violate the Free Exercise Clause of the First Amendment. at 878–882. Smith largely repudiated the method of analysis used in prior free exercise cases like Wisconsin v. 406 U.S. 205 (1972), and In those cases, we employed a balancing test that consid- ered whether a challenged government action that sub- stantially burdened the exercise of religion was necessary to further a compelling state interest. See at 214, 219; Following our decision in Smith, Congress enacted RFRA in order to provide greater protection for religious exercise than is available under the First Amendment. See Hobby at – (slip op., at 5–6). RFRA provides that “[g]overnment shall not substantially Cite as: 574 U. S. (2015) 3 Opinion of the Court burden a person’s exercise of religion even if the burden results from a rule of general applicability,” unless the government “demonstrates that application of the burden to the person––(1) is in furtherance of a compelling gov- ernmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.” 42 U.S. C. §–1(a), (b). In making RFRA applicable to the States and their subdivisions, Congress relied on Section 5 of the Fourteenth Amendment, but in City of this Court held that RFRA exceeded Congress’ powers under that provision. at 532–536. Congress responded to City of Boerne by enacting RLUIPA, which applies to the States and their subdivi- sions and invokes congressional authority under the Spending and Commerce Clauses. See –1(b). RLUIPA concerns two areas of government activity: Sec- tion 2 governs land-use regulation, ; and Section 3—the provision at issue in this case—governs religious exercise by institutionalized persons, –1. Section 3 mirrors RFRA and provides that “[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person––(1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling govern- mental interest.” –1(a). RLUIPA thus allows prisoners “to seek religious accommodations pursuant to the same standard as set forth in RFRA.” Gonzales v. O Espírita Beneficente União do Vegetal, U.S. 418, 436 (2006). Several provisions of RLUIPA underscore its expansive protection for religious liberty. Congress defined “reli- gious exercise” capaciously to include “any exercise of 4 HOLT v. HOBBS Opinion of the Court religion, whether or not compelled by, or central to, a system of religious belief.” –5(7)(A). Congress mandated that this concept “shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this chapter and the Constitution.” –3(g). And Congress stated that RLUIPA “may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise.” –3(c). See Hobby at – (slip op., at 6–7, 43). B Petitioner, as noted, is in the custody of the Arkansas Department of Correction and he objects on religious grounds to the Department’s grooming policy, which pro- vides that “[n]o inmates will be permitted to wear facial hair other than a neatly trimmed mustache that does not extend beyond the corner of the mouth or over the lip.” App. to Brief for Petitioner 11a. The policy makes no exception for inmates who object on religious grounds, but it does contain an exemption for prisoners with medical needs: “Medical staff may prescribe that inmates with a diagnosed dermatological problem may wear facial hair no longer than one quarter of an inch.” The policy provides that “[f]ailure to abide by [the Department’s] grooming standards is grounds for disciplinary action.” at 12a. Petitioner sought permission to grow a beard and, al- though he believes that his faith requires him not to trim his beard at all, he proposed a “compromise” under which he would grow only a 1⁄2-inch beard. App. 164. Prison officials denied his request, and the warden told him: “[Y]ou will abide by [Arkansas Department of Correction] policies and if you choose to disobey, you can suffer the consequences.” No. 5:11–cv–00164 (ED Ark., July 21, 2011), Doc. 13, p. 6 (Letter from Gaylon Lay to Gregory Cite as: 574 U. S. (2015) 5 Opinion of the Court Holt (July 19, 2011)). Petitioner filed a pro se complaint in Federal District Court challenging the grooming policy under RLUIPA. We refer to the respondent prison officials collectively as the Department. In October 2011, the District Court granted petitioner a preliminary injunction and remanded to a Magistrate Judge for an evidentiary hearing. At the hearing, the Department called two witnesses. Both expressed the belief that inmates could hide contraband in even a 1⁄2-inch beard, but neither pointed to any instances in which this had been done in Arkansas or elsewhere. Both witnesses also acknowledged that inmates could hide items in many other places, such as in the hair on their heads or their clothing. In addition, one of the witnesses— Gaylon Lay, the warden of petitioner’s prison— testified that a prisoner who escaped could change his appearance by shaving his beard, and that a prisoner could shave his beard to disguise himself and enter a restricted area of the prison. Neither witness, however, was able to explain why these problems could not be ad- dressed by taking a photograph of an inmate without a beard, a practice followed in other prison systems. Lay voiced concern that the Department would be unable to monitor the length of a prisoner’s beard to ensure that it did not exceed one-half inch, but he acknowledged that the Department kept track of the length of the beards of those inmates who are allowed to wear a 1⁄4-inch beard for medi- cal reasons. As a result of the preliminary injunction, petitioner had a short beard at the time of the hearing, and the Magis- trate Judge commented: “I look at your particular circum- stance and I say, you know, it’s almost preposterous to think that you could hide contraband in your beard.” App. 155. Nevertheless, the Magistrate Judge recommended that the preliminary injunction be vacated and that peti- tioner’s complaint be dismissed for failure to state a claim 6 HOLT v. HOBBS Opinion of the Court on which relief can be granted. The Magistrate Judge emphasized that “the prison officials are entitled to defer- ence,” and that the grooming policy allowed petitioner to exercise his religion in other ways, such as by praying on a prayer rug, maintaining the diet required by his faith, and observing religious holidays. The District Court adopted the Magistrate Judge’s recommendation in full, and the Court of Appeals for the Eighth Circuit affirmed in a brief per curiam opinion, holding that the Department had satisfied its burden of showing that the grooming policy was the least restrictive means of furthering its compelling security interests. 509 Fed. Appx. 561 (2013). The Court of Appeals stated that “courts should ordinarily defer to [prison officials’] expert judgment” in security matters unless there is substantial evidence that a prison’s response is exaggerated. at 562. And while acknowledging that other prisons allow inmates to maintain facial hair, the Eighth Circuit held that this evidence “does not outweigh deference owed to [the] expert judgment of prison officials who are more familiar with their own institutions.” We entered an injunction pending resolution of petition- er’s petition for writ of certiorari, 571 U. S. (2013), and we then granted certiorari, 571 U. S. (2014). II Under RLUIPA, petitioner bore the initial burden of proving that the Department’s grooming policy implicates his religious exercise. RLUIPA protects “any exercise of religion, whether or not compelled by, or central to, a system of religious belief,” –5(7)(A), but, of course, a prisoner’s request for an accommodation must be sin- cerely based on a religious belief and not some other moti- vation, see Hobby 573 U. S., at n. 28 (slip op., at 29, n. 28). Here, the religious exercise at issue is the growing of a beard, which petitioner believes is a dictate of Cite as: 574 U. S. (2015) 7 Opinion of the Court his religious faith, and the Department does not dispute the sincerity of petitioner’s belief. In addition to showing that the relevant exercise of religion is grounded in a sincerely held religious belief, petitioner also bore the burden of proving that the De- partment’s grooming policy substantially burdened that exercise of religion. Petitioner easily satisfied that obliga- tion. The Department’s grooming policy requires petition- er to shave his beard and thus to “engage in conduct that seriously violates [his] religious beliefs.” at (slip op., at 32). If petitioner contravenes that policy and grows his beard, he will face serious disciplinary action. Because the grooming policy puts petitioner to this choice, it sub- stantially burdens his religious exercise. Indeed, the Department does not argue otherwise. The District Court reached the opposite conclusion, but its reasoning (adopted from the recommendation of the Magistrate Judge) misunderstood the analysis that RLUIPA demands. First, the District Court erred by concluding that the grooming policy did not substantially burden petitioner’s religious exercise because “he had been provided a prayer rug and a list of distributors of Islamic material, he was allowed to correspond with a religious advisor, and was allowed to maintain the required diet and observe religious holidays.” App. 177. In taking this approach, the District Court improperly imported a strand of reasoning from cases involving prisoners’ First Amend- ment rights. See, e.g., O’Lone v. Estate of Shabazz, 482 U.S. 342, 351–352 (1987); see also Turner v. Safley, 482 U.S. 78, 90 (1987). Under those cases, the availability of alternative means of practicing religion is a relevant consideration, but RLUIPA provides greater protection. RLUIPA’s “substantial burden” inquiry asks whether the government has substantially burdened religious exercise (here, the growing of a 1⁄2-inch beard), not whether the RLUIPA claimant is able to engage in other forms of 8 HOLT v. HOBBS Opinion of the Court religious exercise. Second, the District Court committed a similar error in suggesting that the burden on petitioner’s religious exer- cise was slight because, according to petitioner’s testi- mony, his religion would “credit” him for attempting to follow his religious beliefs, even if that attempt proved to be unsuccessful. RLUIPA, however, applies to an exer- cise of religion regardless of whether it is “compelled.” –5(7)(A). Finally, the District Court went astray when it relied on petitioner’s testimony that not all Muslims believe that men must grow beards. Petitioner’s belief is by no means idiosyncratic. See Brief for Islamic Law Scholars as Amici Curiae 2 (“hadith requiring beards are widely followed by observant Muslims across the various schools of Is- lam”). But even if it were, the protection of RLUIPA, no less than the guarantee of the Free Exercise Clause, is “not limited to beliefs which are shared by all of the mem- bers of a religious sect.” III Since petitioner met his burden of showing that the Department’s grooming policy substantially burdened his exercise of religion, the burden shifted to the Department to show that its refusal to allow petitioner to grow a 1⁄2- inch beard “(1) [was] in furtherance of a compelling gov- ernmental interest; and (2) [was] the least restrictive means of furthering that compelling governmental inter- est.” –1(a). The Department argues that its grooming policy repre- sents the least restrictive means of furthering a “ ‘broadly formulated interes[t],’ ” see Hobby at (slip op., at 39) (quoting O ), namely, the Department’s compelling interest in prison safety and security. But RLUIPA, like RFRA, contem- Cite as: 574 U. S. (2015) 9 Opinion of the Court plates a “ ‘more focused’ ” inquiry and “ ‘requires the Gov- ernment to demonstrate that the compelling interest test is satisfied through application of the challenged law “to the person”––the particular claimant whose sincere exer- cise of religion is being substantially burdened.’ ” Hobby 573 U. S., at (slip op., at 39) (quoting O at 430–431 (quoting –1(b))). RLUIPA requires us to “ ‘scrutiniz[e] the asserted harm of granting specific exemptions to particular religious claimants’ ” and “to look to the marginal interest in enforcing” the chal- lenged government action in that particular context. Hobby at (slip op., at 39) (quoting O ; alteration in original). In this case, that means the enforcement of the Department’s policy to prevent petitioner from growing a 1⁄2-inch beard. The Department contends that enforcing this prohibi- tion is the least restrictive means of furthering prison safety and security in two specific ways. A The Department first claims that the no-beard policy prevents prisoners from hiding contraband. The Depart- ment worries that prisoners may use their beards to con- ceal all manner of prohibited items, including razors, needles, drugs, and cellular phone subscriber identity module (SIM) cards. We readily agree that the Department has a compelling interest in staunching the flow of contraband into and within its facilities, but the argument that this interest would be seriously compromised by allowing an inmate to grow a 1⁄2-inch beard is hard to take seriously. As noted, the Magistrate Judge observed that it was “almost prepos- terous to think that [petitioner] could hide contraband” in the short beard he had grown at the time of the eviden- tiary hearing. App. 155. An item of contraband would have to be very small indeed to be concealed by a 1⁄2-inch 10 HOLT v. HOBBS Opinion of the Court beard, and a prisoner seeking to hide an item in such a short beard would have to find a way to prevent the item from falling out. Since the Department does not demand that inmates have shaved heads or short crew cuts, it is hard to see why an inmate would seek to hide contraband in a 1⁄2-inch beard rather than in the longer hair on his head. Although the Magistrate Judge dismissed the possibility that contraband could be hidden in a short beard, the Magistrate Judge, the District Court, and the Court of Appeals all thought that they were bound to defer to the Department’s assertion that allowing petitioner to grow such a beard would undermine its interest in suppressing contraband. RLUIPA, however, does not permit such unquestioning deference. RLUIPA, like RFRA, “makes clear that it is the obligation of the courts to consider whether exceptions are required under the test set forth by Congress.” O That test requires the Department not merely to explain why it denied the exemption but to prove that denying the exemption is the least restrictive means of furthering a compelling govern- mental interest. Prison officials are experts in running prisons and evaluating the likely effects of altering prison rules, and courts should respect that expertise. But that respect does not justify the abdication of the responsibil- ity, conferred by Congress, to apply RLUIPA’s rigorous standard. And without a degree of deference that is tan- tamount to unquestioning acceptance, it is hard to swal- low the argument that denying petitioner a 1⁄2-inch beard actually furthers the Department’s interest in rooting out contraband. Even if the Department could make that showing, its contraband argument would still fail because the Depart- ment cannot show that forbidding very short beards is the least restrictive means of preventing the concealment of contraband. “The least-restrictive-means standard is Cite as: 574 U. S. (2015) 11 Opinion of the Court exceptionally demanding,” and it requires the government to “sho[w] that it lacks other means of achieving its de- sired goal without imposing a substantial burden on the exercise of religion by the objecting part[y].” Hobby at (slip op., at 40). “[I]f a less restrictive means is available for the Government to achieve its goals, the Government must use it.” United The Department failed to establish that it could not satisfy its security concerns by simply searching petition- er’s beard. The Department already searches prisoners’ hair and clothing, and it presumably examines the 1⁄4-inch beards of inmates with dermatological conditions. It has offered no sound reason why hair, clothing, and 1⁄4-inch beards can be searched but 1⁄2-inch beards cannot. The Department suggests that requiring guards to search a prisoner’s beard would pose a risk to the physical safety of a guard if a razor or needle was concealed in the beard. But that is no less true for searches of hair, clothing, and 1⁄4-inch beards. And the Department has failed to prove that it could not adopt the less restrictive alternative of having the prisoner run a comb through his beard. For all these reasons, the Department’s interest in eliminating contraband cannot sustain its refusal to allow petitioner to grow a 1⁄2-inch beard. B The Department contends that its grooming policy is necessary to further an additional compelling interest, i.e., preventing prisoners from disguising their identities. The Department tells us that the no-beard policy allows secu- rity officers to identify prisoners quickly and accurately. It claims that bearded inmates could shave their beards and change their appearance in order to enter restricted areas within the prison, to escape, and to evade apprehension after escaping. 12 HOLT v. HOBBS Opinion of the Court We agree that prisons have a compelling interest in the quick and reliable identification of prisoners, and we acknowledge that any alteration in a prisoner’s appear- ance, such as by shaving a beard, might, in the absence of effective countermeasures, have at least some effect on the ability of guards or others to make a quick identification. But even if we assume for present purposes that the De- partment’s grooming policy sufficiently furthers its inter- est in the identification of prisoners, that policy still vio- lates RLUIPA as applied in the circumstances present here. The Department contends that a prisoner who has a beard when he is photographed for identification purposes might confuse guards by shaving his beard. But as peti- tioner has argued, the Department could largely solve this problem by requiring that all inmates be photographed without beards when first admitted to the facility and, if necessary, periodically thereafter. Once that is done, an inmate like petitioner could be allowed to grow a short beard and could be photographed again when the beard reached the 1⁄2-inch limit. Prison guards would then have a bearded and clean-shaven photo to use in making identi- fications. In fact, the Department (like many other States, see Brief for Petitioner 39) already has a policy of photo- graphing a prisoner both when he enters an institution and when his “appearance changes at any time during [his] incarceration.” Arkansas Department of Correction, Inmate Handbook 3–4 (rev. Jan. 2013). The Department argues that the dual-photo method is inadequate because, even if it might help authorities apprehend a bearded prisoner who escapes and then shaves his beard once outside the prison, this method is unlikely to assist guards when an inmate quickly shaves his beard in order to alter his appearance within the prison. The Department contends that the identification concern is particularly acute at petitioner’s prison, where inmates live in barracks and work in fields. Counsel for Cite as: 574 U. S. (2015) 13 Opinion of the Court the Department suggested at oral argument that a pris- oner could gain entry to a restricted area by shaving his beard and swapping identification cards with an- other inmate while out in the fields. Tr. of Oral Arg. 28–30, 39–43. We are unpersuaded by these arguments for at least two reasons. First, the Department failed to show, in the face of petitioner’s evidence, that its prison system is so differ- ent from the many institutions that allow facial hair that the dual-photo method cannot be employed at its institu- tions. Second, the Department failed to establish why the risk that a prisoner will shave a 1⁄2-inch beard to disguise himself is so great that 1⁄2-inch beards cannot be allowed, even though prisoners are allowed to grow mustaches, head hair, or 1⁄4-inch beards for medical reasons. All of these could also be shaved off at a moment’s notice, but the Department apparently does not think that this possi- bility raises a serious security concern. C In addition to its failure to prove that petitioner’s pro- posed alternatives would not sufficiently serve its security interests, the Department has not provided an adequate response to two additional arguments that implicate the RLUIPA analysis. First, the Department has not adequately demonstrated why its grooming policy is substantially underinclusive in at least two respects. Although the Department denied petitioner’s request to grow a 1⁄2-inch beard, it permits prisoners with a dermatological condition to grow 1⁄4-inch beards. The Department does this even though both beards pose similar risks. And the Department permits inmates to grow more than a 1⁄2-inch of hair on their heads. With respect to hair length, the grooming policy provides only that hair must be worn “above the ear” and “no longer in the back than the middle of the nape of the 14 HOLT v. HOBBS Opinion of the Court neck.” App. to Brief for Petitioner 11a. Hair on the head is a more plausible place to hide contraband than a 1⁄2-inch beard—and the same is true of an inmate’s clothing and shoes. Nevertheless, the Department does not require inmates to go about bald, barefoot, or naked. Although the Department’s proclaimed objectives are to stop the flow of contraband and to facilitate prisoner identification, “[t]he proffered objectives are not pursued with respect to analo- gous nonreligious conduct,” which suggests that “those interests could be achieved by narrower ordinances that burdened religion to a far lesser degree.” Church of Lukumi Babalu Aye, (1993). In an attempt to demonstrate why its grooming policy is underinclusive in these respects, the Department empha- sizes that petitioner’s 1⁄2-inch beard is longer than the 1⁄4- inch beard allowed for medical reasons. But the Depart- ment has failed to establish (and the District Court did not find) that a 1⁄4-inch difference in beard length poses a meaningful increase in security risk. The Department also asserts that few inmates require beards for medical reasons while many may request beards for religious reasons. But the Department has not argued that denying petitioner an exemption is necessary to further a compel- ling interest in cost control or program administration. At bottom, this argument is but another formulation of the “classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for every- body, so no exceptions.” O U.S., at 436. We have rejected a similar argument in analogous contexts, see ibid.; and we reject it again today. Second, the Department failed to show, in the face of petitioner’s evidence, why the vast majority of States and the Federal Government permit inmates to grow 1⁄2-inch beards, either for any reason or for religious reasons, but Cite as: 574 U. S. (2015) 15 Opinion of the Court it cannot. See Brief for Petitioner 24–25; Brief for United States as Amicus Curiae 28–29. “While not necessarily controlling, the policies followed at other well-run institu- tions would be relevant to a determination of the need for a particular type of restriction.” That so many other prisons allow inmates to grow beards while ensuring prison safety and security suggests that the Department could satisfy its security concerns through a means less restrictive than denying petitioner the exemption he seeks. We do not suggest that RLUIPA requires a prison to grant a particular religious exemption as soon as a few other jurisdictions do so. But when so many prisons offer an accommodation, a prison must, at a minimum, offer persuasive reasons why it believes that it must take a different course, and the Department failed to make that showing here. Despite this, the courts below deferred to these prison officials’ mere say-so that they could not accommodate petitioner’s request. RLUIPA, however, demands much more. Courts must hold prisons to their statutory burden, and they must not “assume a plausible, less restrictive alternative would be ineffective.” Playboy We emphasize that although RLUIPA provides substan- tial protection for the religious exercise of institutionalized persons, it also affords prison officials ample ability to maintain security. We highlight three ways in which this is so. First, in applying RLUIPA’s statutory standard, courts should not blind themselves to the fact that the analysis is conducted in the prison setting. Second, if an institution suspects that an inmate is using religious activity to cloak illicit conduct, “prison officials may ap- propriately question whether a prisoner’s religiosity, asserted as the basis for a requested accommodation, is authentic.” 16 HOLT v. HOBBS Opinion of the Court (2005). See also Hobby 573 U. S., at n. 28 (slip op., at 29, n. 28). Third, even if a claimant’s religious belief is sincere, an institution might be entitled to with- draw an accommodation if the claimant abuses the exemp- tion in a manner that undermines the prison’s compelling interests. IV In sum, we hold that the Department’s grooming policy violates RLUIPA insofar as it prevents petitioner from growing a 1⁄2-inch beard in accordance with his religious beliefs. The judgment of the United States Court of Ap- peals for the Eighth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Cite as: 574 U. S. (2015) 1 GINSBURG, J., concurring SUPREME COURT OF THE UNITED STATES No. 13–6827 GREGORY HOUSTON HOLT, AKA ABDUL MAALIK MUHAMMAD, PETITIONER v. RAY HOBBS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION, ET AL.

Justice Ginsburg

concurring

Holt v. Hobbs

2015-01-20

https://www.courtlistener.com/opinion/2771249/holt-v-hobbs/

https://www.courtlistener.com/api/rest/v3/clusters/2771249/

2014-003

Unlike the exemption this Court approved in Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___ (2014), accommo- dating petitioner’s religious belief in this case would not detrimentally affect others who do not share petitioner’s belief. See id., at ___, ___–___, and n. 8, ___ (slip op., at 2, 7–8, and n. 8, 27) (GINSBURG, J., dissenting). On that understanding, I join the Court’s opinion. Cite as: 574 U. S. ____ (2015) 1 SOTOMAYOR, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 13–6827 _________________ GREGORY HOUSTON HOLT, AKA ABDUL MAALIK MUHAMMAD, PETITIONER v. RAY HOBBS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION, ET AL.

Unlike the exemption this Court approved in Burwell v. Hobby Lobby Stores, Inc., 573 U. S. (2014), accommo- dating petitioner’s religious belief in this case would not detrimentally affect others who do not share petitioner’s belief. See at –, and n. 8, (slip op., at 2, 7–8, and n. 8, 27) (GINSBURG, J., dissenting). On that understanding, I join the Court’s opinion. Cite as: 574 U. S. (2015) 1 SOTOMAYOR, J., concurring SUPREME COURT OF THE UNITED STATES No. 13–6827 GREGORY HOUSTON HOLT, AKA ABDUL MAALIK MUHAMMAD, PETITIONER v. RAY HOBBS, DIRECTOR, ARKANSAS DEPARTMENT OF CORRECTION, ET AL.

Justice Alito

majority

Department of Homeland Security v. Thuraissigiam

2020-06-25

https://www.courtlistener.com/opinion/4763596/department-of-homeland-security-v-thuraissigiam/

https://www.courtlistener.com/api/rest/v3/clusters/4763596/

Every year, hundreds of thousands of aliens are appre- hended at or near the border attempting to enter this coun- try illegally. Many ask for asylum, claiming that they would be persecuted if returned to their home countries. Some of these claims are valid, and by granting asylum, the United States lives up to its ideals and its treaty obliga- tions. Most asylum claims, however, ultimately fail, and some are fraudulent. In 1996, when Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), 110 Stat. 3009–546, it crafted a system for weeding out patently meritless claims and expeditiously re- moving the aliens making such claims from the country. It was Congress’s judgment that detaining all asylum seekers until the full-blown removal process is completed would place an unacceptable burden on our immigration system and that releasing them would present an undue risk that they would fail to appear for removal proceedings. This case concerns the constitutionality of the system 2 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM Opinion of the Court Congress devised. Among other things, IIRIRA placed re- strictions on the ability of asylum seekers to obtain review under the federal habeas statute, but the United States Court of Appeals for the Ninth Circuit held that these re- strictions are unconstitutional. According to the Ninth Cir- cuit, they unconstitutionally suspend the writ of habeas corpus and violate asylum seekers’ right to due process. We now review that decision and reverse. Respondent’s Suspension Clause argument fails because it would extend the writ of habeas corpus far beyond its scope “when the Constitution was drafted and ratified.” Boumediene v. Bush, 553 U.S. 723, 746 (2008). Indeed, re- spondent’s use of the writ would have been unrecognizable at that time. Habeas has traditionally been a means to se- cure release from unlawful detention, but respondent in- vokes the writ to achieve an entirely different end, namely, to obtain additional administrative review of his asylum claim and ultimately to obtain authorization to stay in this country. Respondent’s due process argument fares no better. While aliens who have established connections in this coun- try have due process rights in deportation proceedings, the Court long ago held that Congress is entitled to set the con- ditions for an alien’s lawful entry into this country and that, as a result, an alien at the threshold of initial entry cannot claim any greater rights under the Due Process Clause. See Nishimura Ekiu v. United States, 142 U.S. 651, 660 (1892). Respondent attempted to enter the country illegally and was apprehended just 25 yards from the border. He there- fore has no entitlement to procedural rights other than those afforded by statute. In short, under our precedents, neither the Suspension Clause nor the Due Process Clause of the Fifth Amendment requires any further review of respondent’s claims, and IIRIRA’s limitations on habeas review are constitutional as applied. Cite as: 591 U. S. ____ (2020) 3 Opinion of the Court I A We begin by briefly outlining the provisions of immigra- tion law that are pertinent to this case. Under those provi- sions, several classes of aliens are “inadmissible” and there- fore “removable.” 8 U.S. C. §§1182, 1229a(e)(2)(A). These include aliens who lack a valid entry document “at the time of application for admission.” §1182(a)(7)(A)(i)(I). An alien who arrives at a “port of entry,” i.e., a place where an alien may lawfully enter, must apply for admission. An alien like respondent who is caught trying to enter at some other spot is treated the same way. §§1225(a)(1), (3). If an alien is inadmissible, the alien may be removed. The usual removal process involves an evidentiary hearing before an immigration judge, and at that hearing an alien may attempt to show that he or she should not be removed. Among other things, an alien may apply for asylum on the ground that he or she would be persecuted if returned to his or her home country. §1229a(b)(4); 8 CFR §1240.11(c) (2020). If that claim is rejected and the alien is ordered re- moved, the alien can appeal the removal order to the Board of Immigration Appeals and, if that appeal is unsuccessful, the alien is generally entitled to review in a federal court of appeals. 8 U.S. C. §§1229a(c)(5), 1252(a). As of the first quarter of this fiscal year, there were 1,066,563 pending re- moval proceedings. See Executive Office for Immigration Review (EOIR), Adjudication Statistics: Pending Cases (Jan. 2020). The average civil appeal takes approximately one year.1 During the time when removal is being litigated, the alien will either be detained, at considerable expense, or allowed to reside in this country, with the attendant risk —————— 1 See Administrative Office of the U. S. Courts, Federal Judicial Case- load Statistics, U. S. Courts of Appeals—Median Time Intervals in Months for Civil and Criminal Appeals Terminated on the Merits (2019) (Table B–4A) (time calculated for non-prisoner appeals from the filing of a notice of appeal to the last opinion or final order). 4 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM Opinion of the Court that he or she may not later be found. §1226(a). Congress addressed these problems by providing more expedited procedures for certain “applicants for admission.” For these purposes, “[a]n alien present in the United States who has not been admitted or who arrives in the United States (whether or not at a designated port of arrival . . . )” is deemed “an applicant for admission.” §1225(a)(1).2 An applicant is subject to expedited removal if, as relevant here, the applicant (1) is inadmissible because he or she lacks a valid entry document; (2) has not “been physically present in the United States continuously for the 2-year pe- riod immediately prior to the date of the determination of inadmissibility”; and (3) is among those whom the Secre- tary of Homeland Security has designated for expedited re- moval. §§1225(b)(1)(A)(i), (iii)(I)–(II).3 Once “an immigra- tion officer determines” that a designated applicant “is inadmissible,” “the officer [must] order the alien removed from the United States without further hearing or review.” §1225(b)(1)(A)(i). Applicants can avoid expedited removal by claiming asy- lum. If an applicant “indicates either an intention to apply for asylum” or “a fear of persecution,” the immigration of- ficer “shall refer the alien for an interview by an asylum officer.” §§1225(b)(1)(A)(i)–(ii). The point of this screening interview is to determine whether the applicant has a “cred- ible fear of persecution.” §1225(b)(1)(B)(v). The applicant need not show that he or she is in fact eligible for asylum— a “credible fear” equates to only a “significant possibility” —————— 2 When respondent entered the country, aliens were treated as appli- cants for admission if they were “encountered within 14 days of entry without inspection and within 100 air miles of any U. S. international land border.” 69 Fed. Reg. 48879 (2004). 3 This authority once belonged to the Attorney General, who is still named in the statute. See 6 U.S. C. §251(2) (transferring authority over “[t]he detention and removal program” to the Department). Cite as: 591 U. S. ____ (2020) 5 Opinion of the Court that the alien would be eligible. Ibid. Thus, while eligibil- ity ultimately requires a “well-founded fear of persecution on account of,” among other things, “race” or “political opin- ion,” §§1101(a)(42)(A), 1158(b)(1)(A), all that an alien must show to avoid expedited removal is a “credible fear.”4 If the asylum officer finds an applicant’s asserted fear to be credible,5 the applicant will receive “full consideration” of his asylum claim in a standard removal hearing. 8 CFR §208.30(f ); see 8 U.S. C. §1225(b)(1)(B)(ii). If the asylum officer finds that the applicant does not have a credible fear, a supervisor will review the asylum officer’s determination. 8 CFR §208.30(e)(8). If the supervisor agrees with it, the applicant may appeal to an immigration judge, who can take further evidence and “shall make a de novo determination.” §§1003.42(c), (d)(1); see 8 U.S. C. §1225(b)(1)(B)(iii)(III). An alien subject to expedited removal thus has an oppor- tunity at three levels to obtain an asylum hearing, and the —————— 4 A grant of asylum enables an alien to enter the country, but even if an applicant qualifies, an actual grant of asylum is discretionary. §1158(b)(1)(A). 5 The asylum officer also considers an alien’s potential eligibility for withholding of removal under §1231(b)(3) or relief under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). 8 CFR §§208.30(e)(2)–(3). Respondent’s habeas pe- tition alleges that “he can show a significan[t] possibility that he could establish eligibility for asylum, withholding of removal, and CAT claims.” App. 31–32. But he says in his petition that he left Sri Lanka “to seek asylum in the United States.” Id., at 15. He discusses the crite- ria only for asylum. Id., at 21; see also Brief for Respondent 4. And he now alleges that he was improperly “denied asylum.” Id., at 5. Moreover, the gravamen of his petition is that he faces persecution in Sri Lanka “because of ” his Tamil ethnicity and political opinions. App. 13. To ob- tain withholding or CAT relief on that basis, he would need to show “a greater likelihood of persecution or torture at home than is necessary for asylum.” Moncrieffe v. Holder, 569 U.S. 184, 187, n. 1 (2013). And he would not avoid removal, only removal to Sri Lanka. 8 U.S. C. §1231(b)(3)(A); 8 CFR §208.16(f ). We therefore read his petition as it is plainly intended: to seek another opportunity to apply for asylum. 6 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM Opinion of the Court applicant will obtain one unless the asylum officer, a super- visor, and an immigration judge all find that the applicant has not asserted a credible fear. Over the last five years, nearly 77% of screenings have resulted in a finding of credible fear.6 And nearly half the remainder (11% of the total number of screenings) were closed for administrative reasons, including the alien’s withdrawal of the claim.7 As a practical matter, then, the great majority of asylum seekers who fall within the cate- gory subject to expedited removal do not receive expedited removal and are instead afforded the same procedural rights as other aliens. Whether an applicant who raises an asylum claim re- ceives full or only expedited review, the applicant is not en- titled to immediate release. Applicants “shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.” §1225(b)(1)(B)(iii)(IV). Applicants who are found to have a credible fear may also be detained pending further consid- eration of their asylum applications. §1225(b)(1)(B)(ii); see Jennings v. Rodriguez, 583 U. S. ___, ___, ___ (2018) (slip op., at 3, 13).8 B The IIRIRA provision at issue in this case, §1252(e)(2), limits the review that an alien in expedited removal may obtain via a petition for a writ of habeas corpus. That pro- vision allows habeas review of three matters: first, “whether the petitioner is an alien”; second, “whether the petitioner was ordered removed”; and third, whether the —————— 6 See GAO, Immigration: Actions Needed To Strengthen USCIS’s Over- sight and Data Quality of Credible and Reasonable Fear Screenings 13– 15, and fig. 2 (GAO–20–250, Feb. 2020). 7 See id., at 16, n. b. 8 The Department may grant temporary parole “for urgent humanitar- ian reasons or significant public benefit.” 8 U.S. C. §1182(d)(5)(A); see also 8 CFR §§212.5(b), 235.3(b)(2)(iii), and (4)(ii). Cite as: 591 U. S. ____ (2020) 7 Opinion of the Court petitioner has already been granted entry as a lawful per- manent resident, refugee, or asylee. §§1252(e)(2)(A)–(C). If the petitioner has such a status, or if a removal order has not “in fact” been “issued,” §1252(e)(5), the court may order a removal hearing, §1252(e)(4)(B). A major objective of IIRIRA was to “protec[t] the Execu- tive’s discretion” from undue interference by the courts; in- deed, “that can fairly be said to be the theme of the legisla- tion.” Reno v. American-Arab Anti-Discrimination Comm., 525 U.S. 471, 486 (1999) (AAADC). In accordance with that aim, §1252(e)(5) provides that “[t]here shall be no review of whether the alien is actually inadmissible or entitled to any relief from removal.” And “[n]otwithstanding” any other “habeas corpus provision”—including 28 U.S. C. §2241— “no court shall have jurisdiction to review” any other “indi- vidual determination” or “claim arising from or relating to the implementation or operation of an order of [expedited] removal.” §1252(a)(2)(A)(i). In particular, courts may not review “the determination” that an alien lacks a credible fear of persecution. §1252(a)(2)(A)(iii); see also §§1252(a)(2)(A)(ii), (iv) (other specific limitations). Even without the added step of judicial review, the credible-fear process and abuses of it can increase the bur- dens currently “overwhelming our immigration system.” 84 Fed. Reg. 33841 (2019).9 The past decade has seen a 1,883% —————— 9 References to the factual material in this regulation are not endorse- ments of the regulation itself. And like the immigration officials in this case, we do not question the basis for respondent’s asserted fear. See infra, at 9. But we note the Department’s view that credible-fear claims can be asserted “in the hope of a lengthy asylum process that will enable [the claimants] to remain in the United States for years . . . despite their statutory ineligibility for relief ” and that an influx of meritless claims can delay the adjudication of meritorious ones; strain detention capacity and degrade detention conditions; cause the release of many inadmissi- ble aliens into States and localities that must shoulder the resulting costs; divert Department resources from protecting the border; and ag- gravate “the humanitarian crisis created by human smugglers.” 84 Fed. 8 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM Opinion of the Court increase in credible-fear claims, and in 2018 alone, there were 99,035 claims. See id., at 33838 (data for fiscal years 2008 to 2018). The majority have proved to be meritless. Many applicants found to have a credible fear—about 50% over the same 10-year period—did not pursue asylum. See EOIR, Adjudication Statistics: Rates of Asylum Filings in Cases Originating With a Credible Fear Claim (Nov. 2018); see also 84 Fed. Reg. 33841 (noting that many instead ab- scond). In 2019, a grant of asylum followed a finding of credible fear just 15% of the time. See EOIR, Asylum Deci- sion Rates in Cases Originating With a Credible Fear Claim (Oct. 2019). Fraudulent asylum claims can also be difficult to detect,10 especially in a screening process that is designed to be expedited and that is currently handling almost 100,000 claims per year. The question presented thus has significant conse- quences for the immigration system. If courts must review credible-fear claims that in the eyes of immigration officials —————— Reg. 33831; see also, e.g., Violent Crime Control and Law Enforcement Act of 1994, §130010(a)(3)(C), 108 Stat. 2030 (legislative finding of “a drain on limited resources resulting from the high cost of processing friv- olous asylum claims”); Arizona v. United States, 567 U.S. 387, 397–398 (2012); Homeland Security Advisory Council, Final Emergency Interim Report 1, 7–8 (Apr. 16, 2019); Letter from K. Nielsen, Secretary of Home- land Security, to Members of Congress 1–2 (Mar. 28, 2019); GAO, Asy- lum: Additional Actions Needed To Assess and Address Fraud Risks 24 (GAO–16–50, Dec. 2015) (GAO Fraud Report); Congressional Budget Of- fice, The Impact of Unauthorized Immigrants on the Budgets of State and Local Governments 8–9 (Dec. 2007); Brief for State of Arizona et al. as Amici Curiae 9–12. 10 See, e.g., GAO Fraud Report 32–33 (discussing Operation Fiction Writer, a criminal investigation of attorneys and application preparers who counseled asylum seekers to lie about religious persecution and forced abortions); Asylum Fraud: Abusing America’s Compassion? Hear- ing before the Subcommittee on Immigration and Border Security of the House Committee on the Judiciary, 113th Cong., 2d Sess. (2014) (testi- mony of Louis D. Crocetti, Jr.) (describing study in which 58% of ran- domly selected asylum applications exhibited indicators of possible fraud and 12% were determined to be fraudulent). Cite as: 591 U. S. ____ (2020) 9 Opinion of the Court and an immigration judge do not meet the low bar for such claims, expedited removal would augment the burdens on that system. Once a fear is asserted, the process would no longer be expedited. C Respondent Vijayakumar Thuraissigiam, a Sri Lankan national, crossed the southern border without inspection or an entry document at around 11 p.m. one night in January 2017. App. 38. A Border Patrol agent stopped him within 25 yards of the border, and the Department detained him for expedited removal. Id., at 37–39, 106; see §§1182(a)(7)(A)(i)(I), 1225(b)(1)(A)(ii), and (b)(1)(B)(iii)(IV). He claimed a fear of returning to Sri Lanka because a group of men had once abducted and severely beaten him, but he said that he did not know who the men were, why they had assaulted him, or whether Sri Lankan authorities would protect him in the future. Id., at 80. He also affirmed that he did not fear persecution based on his race, political opin- ions, or other protected characteristics. Id., at 76–77; see §1101(a)(42)(A). The asylum officer credited respondent’s account of the assault but determined that he lacked a “credible” fear of persecution, as defined by §1225(b)(1)(B)(v), because he had offered no evidence that could have made him eligible for asylum (or other removal relief ). Id., at 83, 87, 89; see §1158(b)(1)(A). The supervising officer agreed and signed the removal order. Id., at 54, 107. After hearing further testimony from respondent, an Immigration Judge affirmed on de novo review and returned the case to the Department for removal. Id., at 97. Respondent then filed a federal habeas petition. Assert- ing for the first time a fear of persecution based on his Tamil ethnicity and political views, id., at 12–13, he argued that he “should have passed the credible fear stage,” id., at 30. But, he alleged, the immigration officials deprived him 10 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM Opinion of the Court of “a meaningful opportunity to establish his claims” and violated credible-fear procedures by failing to probe past his denial of the facts necessary for asylum. Id., at 27, 32. Al- legedly they also failed to apply the “correct standard” to his claims—the “significant possibility” standard—despite its repeated appearance in the records of their decisions. Id., at 30; see id., at 53, 84–89, 97. Respondent requested “a writ of habeas corpus, an injunction, or a writ of manda- mus directing [the Department] to provide [him] a new op- portunity to apply for asylum and other applicable forms of relief.” Id., at 33. His petition made no mention of release from custody. The District Court dismissed the petition, holding that §§1252(a)(2) and (e)(2) and clear Ninth Circuit case law foreclosed review of the negative credible-fear determina- tion that resulted in respondent’s expedited removal order. 287 F. Supp. 3d 1077, 1081 (SD Cal. 2018). The court also rejected respondent’s argument “that the jurisdictional lim- itations of §1252(e) violate the Suspension Clause,” again relying on Circuit precedent. Id., at 1082–1083. The Ninth Circuit reversed. It found that our Suspension Clause precedent demands “reference to the writ as it stood in 1789.” 917 F.3d 1097, 1111 (2019). But without citing any pre-1789 case about the scope of the writ, the court held that §1252(e)(2) violates the Suspension Clause. See id., at 1113–1119. The court added that respondent “has proce- dural due process rights,” specifically the right “ ‘to expe- dited removal proceedings that conformed to the dictates of due process.’ ” Id., at 1111, n. 15 (quoting United States v. Raya-Vaca, 771 F.3d 1195, 1203 (CA9 2014)). Although the decision applied only to respondent, petitioners across the Circuit have used it to obtain review outside the scope of §1252(e)(2), and petitioners elsewhere have attempted to Cite as: 591 U. S. ____ (2020) 11 Opinion of the Court follow suit.11 The Ninth Circuit’s decision invalidated the application of an important provision of federal law and conflicted with a decision from another Circuit, see Castro v. United States Dept. of Homeland Security, 835 F.3d 422 (CA3 2016). We granted certiorari, 589 U. S. ___ (2019). II A The Suspension Clause provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U. S. Const., Art. I, §9, cl. 2. In INS v. St. Cyr, 533 U.S. 289 (2001), we wrote that the Clause, at a minimum, “protects the writ as it existed in 1789,” when the Constitution was adopted. Id., at 301 (internal quota- tion marks omitted). And in this case, respondent agrees that “there is no reason” to consider whether the Clause ex- tends any further. Brief for Respondent 26, n. 12. We therefore proceed on that basis.12 —————— 11 See, e.g., Mnatsakanyan v. United States Dept. of Homeland Secu- rity, 2020 WL 1245371, *5 (SD Cal., Mar. 16, 2020) (“Given the identical claims here as in Thuraissigiam, the Court concludes it has jurisdiction over Petitioner’s habeas petition under the Suspension Clause”); Kaur v. Barr, 2019 WL 4974425, *3 (D Ariz., Oct. 8, 2019) (granting stay of re- moval in light of the decision below); Rodrigues v. McAleenan, 2020 WL 363041, *2, *6 (ND Tex., Jan. 22, 2020) (declining to follow the decision below). 12 The original meaning of the Suspension Clause is the subject of con- troversy. In INS v. St. Cyr, 533 U.S. 289 (2001), the majority and dissent debated whether the Clause independently guarantees the availability of the writ or simply restricts the temporary withholding of its operation. Compare id., at 300, with id., at 336–341 (Scalia, J., dissenting). See also Ex parte Bollman, 4 Cranch 75, 95 (1807). We do not revisit that ques- tion. Nor do we consider whether the scope of the writ as it existed in 1789 defines the boundary of the constitutional protection to which the St. Cyr Court referred, since the writ has never encompassed respond- ent’s claims. 12 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM Opinion of the Court B This principle dooms respondent’s Suspension Clause ar- gument, because neither respondent nor his amici have shown that the writ of habeas corpus was understood at the time of the adoption of the Constitution to permit a peti- tioner to claim the right to enter or remain in a country or to obtain administrative review potentially leading to that result. The writ simply provided a means of contesting the lawfulness of restraint and securing release. In 1768, Blackstone’s Commentaries—usually a “satis- factory exposition of the common law of England,” Schick v. United States, 195 U.S. 65, 69 (1904)—made this clear. Blackstone wrote that habeas was a means to “remov[e] the injury of unjust and illegal confinement.” 3 W. Blackstone, Commentaries on the Laws of England 137 (emphasis de- leted). Justice Story described the “common law” writ the same way. See 3 Commentaries on the Constitution of the United States §1333, p. 206 (1833). Habeas, he explained, “is the appropriate remedy to ascertain . . . whether any person is rightfully in confinement or not.” Ibid. We have often made the same point. See, e.g., Preiser v. Rodriguez, 411 U.S. 475, 484 (1973) (“It is clear . . . from the common-law history of the writ . . . that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody”); Wil- kinson v. Dotson, 544 U.S. 74, 79 (2005) (similar); Munaf v. Geren, 553 U.S. 674, 693 (2008) (similar). —————— We also do not reconsider whether the common law allowed the issu- ance of a writ on behalf of an alien who lacked any allegiance to the coun- try. Compare Boumediene v. Bush, 553 U.S. 723, 746–747 (2008) (form- ing “no certain conclusions”), with Brief for Criminal Justice Legal Foundation as Amicus Curiae 5–13. See also Hamburger, Beyond Pro- tection, 109 Colum. L. Rev. 1823, 1847 (2009); P. Halliday, Habeas Cor- pus: From England to Empire 204 (2010) (Halliday). Cite as: 591 U. S. ____ (2020) 13 Opinion of the Court In this case, however, respondent did not ask to be re- leased.13 Instead, he sought entirely different relief: vaca- tur of his “removal order” and “an order directing [the De- partment] to provide him with a new . . . opportunity to apply for asylum and other relief from removal.” App. 14 (habeas petition). See also id., at 31 (“a fair procedure to apply for asylum, withholding of removal, and CAT relief”); id., at 14 (“a new, meaningful opportunity to apply for asy- lum and other relief from removal”). Such relief might fit an injunction or writ of mandamus—which tellingly, his pe- tition also requested, id., at 33—but that relief falls outside the scope of the common-law habeas writ. Although the historic role of habeas is to secure release from custody, the Ninth Circuit did not suggest that re- lease, at least in the traditional sense of the term,14 was re- quired. Instead, what it found to be necessary was a “mean- ingful opportunity” for review of the procedures used in determining that respondent did not have a credible fear of persecution. 917 F.3d, at 1117. Thus, even according to —————— 13 In his brief, respondent states that “he requests an entirely ordinary habeas remedy: conditional release pending a lawful adjudication. J. A. 33.” Brief for Respondent 29. Citing the same page, the dissent argues that respondent “asked the district court to ‘[i]ssue a writ of habeas cor- pus’ without further limitation on the kind of relief that might entail.” Post, at 7 (opinion of SOTOMAYOR, J.) (quoting App. 33). However, neither on the cited page nor at any other place in the habeas petition is release, conditional or otherwise, even mentioned. And in any event, as we dis- cuss infra, at 15–21, the critical point is that what he sought in the ha- beas petition and still seeks—a writ “directing [the Department] to pro- vide [him] a new opportunity to apply for asylum,” App. 33—is not a form of relief that was available in habeas at the time of the adoption of the Constitution. 14 Although the Ninth Circuit never mentioned release, its opinion might be read to suggest that gaining a right to remain in this country would constitute a release from the “restraint” of exclusion. See 917 F.3d 1097, 1117 (2019). No evidence has been called to our attention that the writ was understood in 1789 to apply to any comparable form of restraint. 14 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM Opinion of the Court the Ninth Circuit, respondent’s petition did not call for tra- ditional habeas relief. Not only did respondent fail to seek release, he does not dispute that confinement during the pendency of expedited asylum review, and even during the additional proceedings he seeks, is lawful. Nor could he. It is not disputed that he was apprehended in the very act of attempting to enter this country; that he is inadmissible because he lacks an entry document, see §§1182(a)(7)(A), 1225(b)(1)(A)(i); and that, under these circumstances, his case qualifies for the expe- dited review process, including “[m]andatory detention” during his credible-fear review, §§1225(b)(1)(B)(ii), (iii)(IV). Moreover, simply releasing him would not provide the right to stay in the country that his petition ultimately seeks. Without a change in status, he would remain subject to ar- rest, detention, and removal. §§1226(a), 1229a(e)(2). While respondent does not claim an entitlement to re- lease, the Government is happy to release him—provided the release occurs in the cabin of a plane bound for Sri Lanka. That would be the equivalent of the habeas relief Justice Story ordered in a case while riding circuit. He is- sued a writ requiring the release of a foreign sailor who jumped ship in Boston, but he provided for the sailor to be released into the custody of the master of his ship. Ex parte D’Olivera, 7 F. Cas. 853, 854 (No. 3,967) (CC Mass. 1813). Respondent does not want anything like that. His claim is more reminiscent of the one we rejected in Munaf. In that case, American citizens held in U. S. custody in Iraq filed habeas petitions in an effort to block their transfer to Iraqi authorities for criminal prosecution. See 553 U.S., at 692. Rejecting this use of habeas, we noted that “[h]abeas is at its core a remedy for unlawful executive detention” and that what these individuals wanted was not “simple re- lease” but an order requiring them to be brought to this country. Id., at 693, 697. Claims so far outside the “core” of habeas may not be pursued through habeas. See, e.g., Cite as: 591 U. S. ____ (2020) 15 Opinion of the Court Skinner v. Switzer, 562 U.S. 521, 535, n. 13 (2011). Like the habeas petitioners in Munaf, respondent does not want “simple release” but, ultimately, the opportunity to remain lawfully in the United States. That he seeks to stay in this country, while the habeas petitioners in Munaf asked to be brought here from Iraq, see post, at 19–20 (opin- ion of SOTOMAYOR, J.), is immaterial. In this case as in Munaf, the relief requested falls outside the scope of the writ as it was understood when the Constitution was adopted. See Castro, 835 F.3d, at 450–451 (Hardiman, J., concurring dubitante) (“Petitioners here seek to alter their status in the United States in the hope of avoiding release to their homelands. That prayer for relief . . . dooms the merits of their Suspension Clause argument” (emphasis de- leted)). III Disputing this conclusion, respondent argues that the Suspension Clause guarantees a broader habeas right. To substantiate this claim, he points to three bodies of case law: British and American cases decided prior to or around the time of the adoption of the Constitution, decisions of this Court during the so-called “finality era” (running from the late 19th century to the mid-20th century), and two of our more recent cases. None of these sources support his argument. A Respondent and amici supporting his position have done considerable research into the use of habeas before and around the time of the adoption of the Constitution,15 but —————— 15 Respondent and his amici rely primarily on British cases decided be- fore the adoption of the Constitution. “There is widespread agreement that the common-law writ of habeas corpus was in operation in all thir- teen of the British colonies that rebelled in 1776,” but “almost no re- ported decisio[n] from the period.” Oldham & Wishnie, The Historical Scope of Habeas Corpus and INS v. St. Cyr, 16 Geo. Immigration L. J. 16 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM Opinion of the Court they have not unearthed evidence that habeas was then used to obtain anything like what is sought here, namely, authorization for an alien to remain in a country other than his own or to obtain administrative or judicial review lead- ing to that result. All that their research (and the dissent’s) shows is that habeas was used to seek release from deten- tion in a variety of circumstances. In fact, respondent and his amici do not argue that their cases show anything more. See Brief for Respondent 27 (arguing that habeas was “available” at the founding “to test all forms of physical re- straint”); Brief for Scholars of the Law of Habeas Corpus as Amici Curiae 11 (the “historical record . . . demonstrates that the touchstone for access to the writ” was “whether the petitioner challenges control of his person”). Because respondent seeks to use habeas to obtain some- thing far different from simple release, his cause is not aided by the many release cases that he and his amici have found. Thus, for present purposes, it is immaterial that ha- beas was used to seek release from confinement that was imposed for, among other things, contempt of court (see Bushell’s Case, Vaugh. 135, 124 Eng. Rep. 1006 (C. P. 1670)), debt (see Hollingshead’s Case, 1 Salk. 351, 91 Eng. Rep. 307 (K. B. 1702); Rex v. Nathan, 2 Str. 880, 93 Eng. Rep. 914 (K. B. 1724)), medical malpractice (see Dr. Groen- velt’s Case, 1 Raym. Ld. 213, 91 Eng. Rep. 1038 (K. B. 1702)), failing to pay an assessment for sewers (see Hetley v. Boyer, Cro. Jac. 336, 79 Eng. Rep. 287 (K. B. 1613)), fail- ure to lend the King money (see Darnel’s Case, 3 How. St. Tr. 1 (K. B. 1627)), carrying an authorized “dagg,” i.e., hand- gun (see Gardener’s Case, Cro. Eliz. 821, 78 Eng. Rep. 1048 (K. B. 1600)), “impressment” into military service or invol- untary servitude (see St. Cyr, 533 U.S., at 302), or refusing to pay a colonial tax (see Oldham & Wishnie 496). Nor does it matter that common-law courts sometimes ordered or —————— 485, 496 (2002) (Oldham & Wishnie) (internal quotation marks omitted). Cite as: 591 U. S. ____ (2020) 17 Opinion of the Court considered ordering release in circumstances that would be beyond the reach of any habeas statute ever enacted by Congress, such as release from private custody. See, e.g., Rex v. Delaval, 3 Burr. 1434, 1435–1437, 97 Eng. Rep. 913, 914 (K. B. 1763) (release of young woman from “indentures of apprenticeship”); Rex v. Clarkson, 1 Str. 444, 93 Eng. Rep. 625 (K. B. 1722) (release from boarding school); Lister’s Case, 8 Mod. 22, 88 Eng. Rep. 17 (K. B. 1721) (release of wife from estranged husband’s restraint). What matters is that all these cases are about release from restraint. Ac- cord, Preiser, 411 U.S., at 484–485, and nn. 3–5.16 Respondent and his amici note that habeas petitioners were sometimes released on the condition that they conform to certain requirements. See Brief for Respondent 30; Legal Historians Brief 18. For example, they cite a case in which a man was released on condition that he treat his wife well and support her, and another in which a man was released on condition that he issue an apology. Ibid. But what re- spondent sought in this case is nothing like that. Respond- ent does not seek an order releasing him on the condition that he do or refrain from doing something. What he wants—further review of his asylum claim—is not a condi- tion with which he must comply. Equally irrelevant is the practice, discussed in the dissent, of allowing the executive to justify or cure a defect in detention before requiring re- lease. See post, at 16–18. Respondent does not seek this sort of conditional release either, because the legality of his detention is not in question. —————— 16 Respondent’s amici also point out that, during the English Civil War, Parliament created a national religion and a “bewildering array of com- mittees” to manage the war. Brief for Legal Historians as Amici Curiae 10 (Legal Historians Brief ) (internal quotation marks omitted). They argue that “[h]abeas corpus was readily available to test the legality of their actions.” Ibid. But according to their source, the challenged actions were “imprisonment orders,” including imprisonment of clergymen who refused to conform. Halliday 163–164. 18 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM Opinion of the Court Respondent contends that two cases show that habeas could be used to secure the right of a non-citizen to remain in a foreign country, but neither proves his point. His first case, involving a Scot named Murray, is one for which no official report is available for us to review.17 We could hardly base our decision here on such a decision.18 His second case, Somerset v. Stewart, Lofft. 1, 98 Eng. Rep. 499 (K. B. 1772), is celebrated but does not aid re- spondent. James Somerset was a slave who was “de- tain[ed]” on a ship bound for Jamaica, and Lord Mansfield famously ordered his release on the ground that his deten- tion as a slave was unlawful in England. Id., at 19, 98 Eng. Rep., at 510. This relief, release from custody, fell within the historic core of habeas, and Lord Mansfield did not or- der anything else. It may well be that a collateral consequence of Somerset’s release was that he was allowed to remain in England, but if that is so, it was due not to the writ issued by Lord Mans- field, but to English law regarding entitlement to reside in the country. At the time, England had nothing like modern immigration restrictions. As late as 1816, the word “depor- tation” apparently “was not to be found in any English dic- —————— 17 Respondent cites a secondary source, which in turn cites to the Na- tional Archives in London. See Brief for Respondent 27 (citing Halliday 236). 18 Whether the founding generation understood habeas relief more broadly than described by Blackstone, Justice Story, and our prior cases, see supra, at 12, cannot be settled by a single case or even a few obscure and possibly aberrant cases. And in any event, what is said here about Murray’s case provides little support for respondent’s position. In 1677, we are told, Murray was imprisoned in England so that he could be “ ‘sent into Scotland’ ” for a criminal trial, but the King’s Bench twice issued a writ of habeas corpus requiring his release. Brief for Respondent 27 (quoting Halliday 236). Putting aside the “delicate” relationship between England and Scotland at the time, Boumediene, 553 U.S., at 749, issu- ance of a writ to secure the release of a person held in pretrial custody is far afield from what respondent wants here. Cite as: 591 U. S. ____ (2020) 19 Opinion of the Court tionary.” The Use of the Crown’s Power of Deportation Un- der the Aliens Act, 1793–1826, in J. Dinwiddy, Radicalism and Reform in Britain, 1780–1850, p. 150, n. 4 (1992); see also, e.g., Craies, The Right of Aliens To Enter British Ter- ritory, 6 L. Q. Rev. 27, 35 (1890) (“England was a complete asylum to the foreigner who did not offend against its laws”); Haycraft, Alien Legislation and the Prerogative of the Crown, 13 L. Q. Rev. 165, 180 (1897) (“There do not ap- pear to have been any transactions in Parliament or in the [Crown’s] Privy Council directly affecting [deportation] from the time of Elizabeth [I] to that of George III”).19 For a similar reason, respondent cannot find support in early 19th-century American cases in which deserting for- eign sailors used habeas to obtain their release from the custody of American officials. In none of the cases involving deserters that have been called to our attention did the court order anything more than simple release from cus- tody. As noted, Justice Story ordered a sailor’s release into the custody of his ship’s master. See Ex parte D’Olivera, 7 F. Cas., at 854. Other decisions, while ordering the re- lease of detained foreign deserters because no statute au- thorized detention, chafed at having to order even release. See Case of the Deserters from the British Frigate L’Afri- caine, 3 Am. L. J. & Misc. Repertory 132, 135–136 (Md. 1810) (reporting judge’s statement “that he never would in- terfere to prevent” the British consul himself from detain- ing British deserters); Case of Hippolyte Dumas, 2 Am. L. J. & Misc. Repertory 86, 87 (Pa. 1809) (noting “inconven- ience” that U. S. law did not discourage desertion of foreign sailors); Commonwealth v. Holloway, 1 Serg. & Rawle 392, 396 (Pa. 1815) (opinion of Tilghman, C. J.) (same); id., at —————— 19 This regime lasted until after 1789, when the Aliens Act of 1793 au- thorized justices of the peace to imprison “without bail or mainprize” (i.e., bond) any alien found without a passport, who could then be “sen[t] out of th[e] realm.” An Act for Regulating Immigration into Great Britain, 33 Geo. III, ch. 4, §§11, 29. 20 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM Opinion of the Court 397 (opinion of Yeates, J.) (same). These cases thus do not contemplate the quite different relief that respondent asks us to sanction here. In these cases, as in Somerset, it may be that the released petitioners were able to remain in the United States as a collateral consequence of release, but if so, that was due not to the writs ordering their release, but to U. S. immigration law or the lack thereof. These decisions came at a time when an “open door to the immigrant was the . . . federal policy.” Harisiades v. Shaughnessy, 342 U.S. 580, 588, n. 15 (1952); see also St. Cyr, 533 U.S., at 305 (first immi- gration regulation enacted in 1875). So release may have had the side effect of enabling these individuals to remain in this country, but that is beside the point. The relief that a habeas court may order and the collat- eral consequences of that relief are two entirely different things. Ordering an individual’s release from custody may have the side effect of enabling that person to pursue all sorts of opportunities that the law allows. For example, re- lease may enable a qualified surgeon to operate on a pa- tient; a licensed architect may have the opportunity to de- sign a bridge; and a qualified pilot may be able to fly a passenger jet. But a writ of habeas could not be used to compel an applicant to be afforded those opportunities or as a means to obtain a license as a surgeon, architect, or pilot. Similarly, while the release of an alien may give the alien the opportunity to remain in the country if the immigration laws permit, we have no evidence that the writ as it was known in 1789 could be used to require that aliens be per- mitted to remain in a country other than their own, or as a means to seek that permission. Respondent’s final examples involve international extra- dition, but these cases are no more pertinent than those al- ready discussed. For one thing, they post-date the founding era. England was not a party to any extradition treaty in 1789, and this country’s first extradition treaty was the Jay Cite as: 591 U. S. ____ (2020) 21 Opinion of the Court Treaty of 1794. See 1 J. Moore, Extradition and Interstate Rendition §§7, 78, pp. 10, 89 (1891). In any event, extradi- tion cases, similar to the deserter cases, illustrate nothing more than the use of habeas to secure release from custody when not in compliance with the extradition statute and relevant treaties. As noted by a scholar on whose work re- spondent relies, these cases “examine[d] the lawfulness of magistrates’ decisions permitting the executive to detain al- iens.” Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens, 98 Colum. L. Rev. 961, 1003 (1998). In these cases, as in all the others noted above, habeas was used “simply” to seek release from allegedly unlawful de- tention. Benson v. McMahon, 127 U.S. 457, 463 (1888). See also, e.g., In re Stupp, 23 F. Cas. 296, 303 (No. 13,563) (CC SDNY 1875).20 Despite pages of rhetoric, the dissent is unable to cite a single pre-1789 habeas case in which a court ordered relief that was anything like what respondent seeks here. The —————— 20 Amici supporting respondent make an additional argument. They contend that “[i]n eighteenth century practice, the authority of English judges to review habeas petitions was not constrained by past decisions” and that these judges felt free to innovate in order to ensure that justice was done. Legal Historians Brief 5–6. But the role of federal courts un- der our Constitution is very different from that of those English judges. The English judges “were considered agents of the Crown, designed to assist the King in the exercise of his power.” Boumediene, 553 U.S., at 740. The court with primary habeas jurisdiction, after all, was called the King’s Bench, on which the King “was theoretically always present.” Halliday & White, The Suspension Clause: English Text, Imperial Con- texts, and American Implications, 94 Va. L. Rev. 575, 594, 598, and n. 49 (2008). Habeas was an exercise of the King’s prerogative “to have an account . . . why the liberty of any of his subjects is restrained.” 2 J. Story, Commentaries on the Constitution of the United States §1335, p. 207 (1833); accord, Legal Historians Brief 5–7. In our federal courts, by contrast, the scope of habeas has been tightly regulated by statute, from the Judiciary Act of 1789 to the present day, and precedent is as binding in a habeas case as in any other. See, e.g., Jenkins v. Hutton, 582 U. S. ___, ___ (2017) (per curiam) (slip op., at 4). 22 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM Opinion of the Court dissent instead contends that “the Suspension Clause in- quiry does not require a close (much less precise) factual match with historical habeas precedent,” post, at 11, and then discusses cases that are not even close to this one. The dissent reveals the true nature of its argument by suggest- ing that there are “inherent difficulties [in] a strict original- ist approach in the habeas context because of, among other things, the dearth of reasoned habeas decisions at the founding.” Ibid. But respondent does not ask us to hold that the Suspension Clause guarantees the writ as it might have evolved since the adoption of the Constitution. On the contrary, as noted at the outset of this discussion, he rests his argument on “the writ as it existed in 1789.” Brief for Respondent 26, n. 12. What the dissent merely implies, one concurring opinion states expressly, arguing that the scope of the writ guaran- teed by the Suspension Clause “may change ‘depending upon the circumstances’ ” and thus may allow certain aliens to seek relief other than release. Post, at 3 (BREYER, J., concurring in judgment) (quoting Boumediene, 553 U.S., at 779). But that is not respondent’s argument, and as a gen- eral rule “we rely on the parties to frame the issues for de- cision and assign to courts the role of neutral arbiter of mat- ters the parties present.” United States v. Sineneng-Smith, 590 U. S. ___, ___ (2020) (slip op., at 3) (internal quotation marks omitted). In any event, the concurrence’s snippets of quotations from Boumediene are taken entirely out of con- text. They relate to the question whether the statutory re- view procedures for Guantanamo detainees seeking release from custody provided an adequate substitute for a habeas petition seeking release. See infra, at 32–33. They do not suggest that any habeas writ guaranteed by the Suspension Clause permits a petitioner to obtain relief that goes far be- Cite as: 591 U. S. ____ (2020) 23 Opinion of the Court yond the “core” of habeas as “a remedy for unlawful execu- tive detention.” Munaf, 553 U.S., at 693.21 B We now proceed to consider the second body of case law on which respondent relies, decisions of this Court during the “finality era,” which takes its name from a feature of the Immigration Act of 1891 making certain immigration deci- sions “final.” Although respondent claims that his argu- ment is supported by “the writ as it existed in 1789,” Brief for Respondent 26, n. 12, his argument focuses mainly on this body of case law, which began a century later. These cases, he claims, held that “the Suspension Clause man- dates a minimum level of judicial review to ensure that the —————— 21 This concurrence imagines three horrible possibilities that it fears could come to pass unless we interpret the Suspension Clause to protect the right to some undefined category of relief beyond release from cus- tody. See post, at 2 (opinion of BREYER, J.). But its interpretation is nei- ther necessary nor obviously sufficient to prevent the possibilities it fears. First, if a citizen were detained for deportation, today’s opinion would not prevent the citizen from petitioning for release. Second, if re- spondent’s “procedural” claims do not merit habeas review, as the con- currence concludes, post, at 8, it is not clear why habeas should help the concurrence’s hypothetical alien whose credible-fear claim was rejected based on forged evidence. Both respondent and this hypothetical alien assert procedural irregularities. Does the availability of habeas review depend on a judge’s view of the severity of the irregularity asserted? Fi- nally, there is the hypothetical alien denied asylum on the ground that Judaism is not a religion. Such a decision would of course be ridiculous, but why it would not raise a question of “brute fac[t]” that falls outside the concurrence’s interpretation of the Suspension Clause, post, at 5, is again not clear. Whatever may be said about the concurrence’s hypotheticals, it is pos- sible to imagine all sorts of abuses not even remotely related to unau- thorized executive detention that could be imposed on people in this country if the Constitution allowed Congress to deprive the courts of any jurisdiction to entertain claims regarding such abuses. If that were to happen, it would no doubt be argued that constitutional provisions other than the Suspension Clause guaranteed judicial review. We have no oc- casion to consider such arguments here. 24 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM Opinion of the Court Executive complies with the law in effectuating removal.” Id., at 11–12. The Ninth Circuit also relied heavily on these cases and interpreted them to “suggest that the Suspension Clause requires review of legal and mixed questions of law and fact related to removal orders.” 917 F.3d, at 1117. This interpretation of the “finality era” cases is badly mis- taken. Those decisions were based not on the Suspension Clause but on the habeas statute and the immigration laws then in force. The habeas statute in effect during this time was broad in scope. It authorized the federal courts to re- view whether a person was being held in custody in viola- tion of any federal law, including immigration laws. Thus, when aliens claimed that they were detained in violation of immigration statutes, the federal courts considered whether immigration authorities had complied with those laws. This, of course, required that the immigration laws be interpreted, and at the start of the finality era, this Court interpreted the 1891 Act’s finality provision to block review of only questions of fact. Accordingly, when writs of habeas corpus were sought by aliens who were detained on the ground that they were not entitled to enter this country, the Court considered whether, given the facts found by the im- migration authorities, the detention was consistent with applicable federal law. But the Court exercised that review because it was authorized to do so by statute. The decisions did not hold that this review was required by the Suspen- sion Clause. In this country, the habeas authority of federal courts has been addressed by statute from the very beginning. The Judiciary Act of 1789, §14, 1 Stat. 82, gave the federal courts the power to issue writs of habeas corpus under spec- ified circumstances, but after the Civil War, Congress en- acted a much broader statute. That law, the Habeas Cor- pus Act of 1867, provided that “the several courts of the United States . . . shall have power to grant writs of habeas corpus in all cases where any person may be restrained of Cite as: 591 U. S. ____ (2020) 25 Opinion of the Court his or her liberty in violation of the constitution, or of any treaty or law of the United States.” Judiciary Act of Feb. 5, 1867, §1, 14 Stat. 385. The Act was “of the most compre- hensive character,” bringing “within the habeas corpus ju- risdiction of every court and of every judge every possible case of privation of liberty contrary” to federal law. Ex parte McCardle, 6 Wall. 318, 325–326 (1868). This ju- risdiction was “impossible to widen.” Id., at 326; see Fay v. Noia, 372 U.S. 391, 415 (1963) (noting the Act’s “expansive language” and “imperative tone”). The 1867 statute, unlike the current federal habeas statute, was not subject to re- strictions on the issuance of writs in immigration matters, and in United States v. Jung Ah Lung, 124 U.S. 621 (1888), the Court held that an alien in immigration custody could seek a writ under that statute. Id., at 626. This provided the statutory basis for the writs sought in the finality era cases. The Immigration Act of 1891, enacted during one of the country’s great waves of immigration, required the exclu- sion of certain categories of aliens and established proce- dures for determining whether aliens fell within one of those categories. The Act required the exclusion of “idiots, insane persons, paupers or persons likely to become a public charge,” persons with infectious diseases, persons with con- victions for certain crimes, some individuals whose passage had been paid for by a third party, and certain laborers. Act of Mar. 3, 1891, ch. 551, §1, 26 Stat. 1084. Inspection offic- ers were authorized to board arriving vessels and inspect any aliens on board. §8, id., at 1085. And, in the provision of central importance here, the Act provided that “[a]ll de- cisions made by the inspection officers or their assistants touching the right of any alien to land, when adverse to such right, shall be final unless appeal be taken to the su- perintendent of immigration, whose action shall be subject to review by the Secretary of the Treasury.” Ibid. Later 26 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM Opinion of the Court immigration Acts, which remained in effect until 1952,22 contained similar provisions. See Act of 1894, 28 Stat. 390; Immigration Act of 1907, §25, 34 Stat. 907; Immigration Act of 1917, §17, 39 Stat. 887. The first of the finality era cases, Nishimura Ekiu v. United States, 142 U.S. 651 (1892), required the Court to address the effect of the 1891 Act’s finality provision in a habeas case. Nishimura Ekiu is the cornerstone of respond- ent’s argument regarding the finality era cases, so the opin- ion in that case demands close attention. The case involved an alien who was detained upon arrival based on the immigration inspector’s finding that she was liable to become a public charge. Seeking to be released, the alien applied to the Circuit Court for a writ of habeas corpus and argued that the 1891 Act, if construed to give immigration authorities the “exclusive authority to deter- mine” her right to enter, would violate her constitutional right to the writ of habeas corpus and her right to due pro- cess. Id., at 656 (statement of the case). The Circuit Court refused to issue the writ, holding that the determination of the inspector of immigration was not subject to review, and the alien then appealed. This Court upheld the denial of the writ. The Court in- terpreted the 1891 Act to preclude judicial review only with respect to questions of fact. Id., at 660. And after inter- preting the 1891 Act in this way, the Court found that “the act of 1891 is constitutional.” Id., at 664. The Court’s narrow interpretation of the 1891 Act’s final- ity provision meant that the federal courts otherwise re- tained the full authority granted by the Habeas Corpus Act of 1867 to determine whether an alien was detained in vio- lation of federal law. Turning to that question, the Court —————— 22 See Shaughnessy v. Pedreiro, 349 U.S. 48, 51–52 (1955) (interpret- ing 1952 Immigration and Nationality Act, 66 Stat. 163, to provide for review of deportation orders). Cite as: 591 U. S. ____ (2020) 27 Opinion of the Court held that the only procedural rights of an alien seeking to enter the country are those conferred by statute. “As to such persons,” the Court explained, “the decisions of execu- tive or administrative officers, acting within powers ex- pressly conferred by Congress, are due process of law.” Id., at 660. The Court therefore considered whether the proce- dures set out in the 1891 Act had been followed, and finding no violation, affirmed the denial of the writ. Id., at 661– 664. What is critical for present purposes is that the Court did not hold that the Suspension Clause imposed any limi- tations on the authority of Congress to restrict the issuance of writs of habeas corpus in immigration matters. Respondent interprets Nishimura Ekiu differently. See Brief for Respondent 13–15. As he reads the decision, the Court interpreted the 1891 Act to preclude review of all questions related to an alien’s entitlement to enter the coun- try. Any other interpretation, he contends, would fly in the face of the statutory terms. But, he maintains, the Court held that this limitation violated the Suspension Clause ex- cept with respect to questions of fact, and it was for this reason that the Court considered whether the procedures specified by the 1891 Act were followed. In other words, he reads Nishimura Ekiu as holding that the 1891 Act’s final- ity provision was unconstitutional in most of its applica- tions (i.e., to all questions other than questions of fact). This interpretation is wrong. The opinion in Nishimura Ekiu states unequivocally that “the act of 1891 is constitu- tional,” id., at 664, not that it is constitutional only in part. And if there is any ambiguity in the opinion regarding the Court’s interpretation of the finality provision, the later de- cision in Gegiow v. Uhl, 239 U.S. 3 (1915), left no doubt. What Nishimura Ekiu meant, Gegiow explained, was that the immigration authorities’ factual findings were conclu- sive (as Gegiow put it, “[t]he conclusiveness of the decisions of immigration officers . . . is conclusiveness upon matters of fact”) and therefore, the Court was “not forbidden by the 28 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM Opinion of the Court statute to consider” in a habeas proceeding “whether the reasons” for removing an alien “agree with the require- ments of the act.” 239 U.S., at 9. In light of this interpre- tation, the Nishimura Ekiu Court had no occasion to decide whether the Suspension Clause would have tolerated a broader limitation, and there is not so much as a hint in the opinion that the Court considered this question. Indeed, the opinion never even mentions the Suspension Clause, and it is utterly implausible that the Court would hold sub silentio that Congress had violated that provision. Holding that an Act of Congress unconstitutionally sus- pends the writ of habeas corpus is momentous. See Boumediene, 553 U.S., at 773 (noting “the care Congress has taken throughout our Nation’s history” to avoid suspen- sion). The Justices on the Court at the beginning of the fi- nality era had seen historic occasions when the writ was suspended—during the Civil War by President Lincoln and then by Congress, and later during Reconstruction by Pres- ident Grant. See Hamdi v. Rumsfeld, 542 U.S. 507, 563 (2004) (Scalia, J., dissenting) (discussing these events). The suspension of habeas during this era played a prominent role in our constitutional history. See Ex parte Merryman, 17 F. Cas. 144, 151–152 (No. 9,487) (CC Md. 1861) (Taney, C. J.); Ex parte Milligan, 4 Wall. 2, 116, 131 (1866). (Two of the Justices at the beginning of the finality era were on the Court when Ex parte Milligan was decided.) The Jus- tices knew a suspension of the writ when they saw one, and it is impossible to believe that the Nishimura Ekiu Court identified another occasion when Congress had suspended the writ and based its decision on the Suspension Clause without even mentioning that provision. The dissent’s interpretation of Nishimura Ekiu is differ- ent from respondent’s. According to the dissent, Nishimura Ekiu interpreted the 1891 Act as it did based on the doc- trine of constitutional avoidance. See post, at 22. This reading has no support in the Court’s opinion, which never Cite as: 591 U. S. ____ (2020) 29 Opinion of the Court mentions the Suspension Clause or the avoidance doctrine and never explains why the Clause would allow Congress to preclude review of factual findings but nothing more. But even if there were some basis for this interpretation, it would not benefit respondent, and that is undoubtedly why he has not made the argument. IIRIRA unequivocally bars habeas review of respondent’s claims, see §1252(e)(2), and he does not argue that it can be read any other way. The avoidance doctrine “has no application in the absence of am- biguity.” Warger v. Shauers, 574 U.S. 40, 50 (2014) (inter- nal quotation marks and ellipsis omitted). Thus, if Nishi- mura Ekiu’s interpretation were based on constitutional avoidance, it would still not answer the interpretive ques- tion here. When we look to later finality era cases, any suggestion of a Suspension Clause foundation becomes even less plau- sible. None of those decisions mention the Suspension Clause or even hint that they are based on that provision, and these omissions are telling. On notable occasions dur- ing that time, the writ was suspended—in the Philippines in 190623 and Hawaii in 1941.24 During World War II, the Court held that “enemy aliens” could utilize habeas “unless there was suspension of the writ.” In re Yamashita, 327 U.S. 1, 9 (1946). And the Court invoked the Suspension Clause in holding that the Executive lacked authority to in- tern a Japanese-American citizen. See Ex parte Endo, 323 U.S. 283, 297–299 (1944). If the Justices during that time had thought that the Suspension Clause provided the au- thority they were exercising in the many cases involving habeas petitions by aliens detained prior to entry, it is hard —————— 23 While the Philippines was a Territory, its government suspended ha- beas to deal with “ ‘certain organized bands’ ” of rebels. Fisher v. Baker, 203 U.S. 174, 179–181 (1906) (quoting resolution). 24 The Governor of Hawaii suspended habeas, with President Roose- velt’s approval, after the attack on Pearl Harbor. See Duncan v. Kahan- amoku, 327 U.S. 304, 307–308, 324 (1946). 30 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM Opinion of the Court to believe that this important fact would have escaped men- tion. Respondent suggests that Nishimura Ekiu cannot have interpreted the 1891 Act’s finality provision to apply only to factual questions because the statutory text categorically bars all review. The important question here, however, is what the Court did in Nishimura Ekiu, not whether its in- terpretation was correct, and in any event, there was a rea- sonable basis for the Court’s interpretation. The determinations that the immigration officials were required to make under the 1891 Act were overwhelmingly factual in nature. The determination in Nishimura’s case— that she was likely to become a public charge—seems to have been a pure question of fact, and the other grounds for exclusion under the Act involved questions that were either solely or at least primarily factual in nature. If we were now called upon to determine the meaning of a provision like the finality provision in the 1891 Act, our precedents would provide the basis for an argument in fa- vor of the interpretation that the Nishimura Ekiu Court reached. The presumption in favor of judicial review, see, e.g., Guerrero-Lasprilla v. Barr, 589 U. S. ___, ___ (2020) (slip op., at 6); Nasrallah v. Barr, 590 U. S. ___, ___–___ (2020) (slip op., at 7–9), could be invoked. So could the rule that “[i]mplications from statutory text or legislative his- tory are not sufficient to repeal habeas jurisdiction.” St. Cyr, 533 U.S., at 299; accord, Ex parte Yerger, 8 Wall. 85, 105 (1869). Thus, respondent’s interpretation of the deci- sion in Nishimura Ekiu is wrong, and the same is true of his understanding of the later finality era cases. Rather than relying on the Suspension Clause, those cases simply involved the exercise of the authority con- ferred by the habeas statute then in effect. This was true of Nishimura Ekiu, Gegiow, and every other finality era case that respondent cites in support of his Suspension Clause argument. See, e.g., Gonzales v. Williams, 192 U. S. Cite as: 591 U. S. ____ (2020) 31 Opinion of the Court 1 (1904); Yee Won v. White, 256 U.S. 399 (1921); Tod v. Waldman, 266 U.S. 113 (1924); United States ex rel. Polymeris v. Trudell, 284 U.S. 279 (1932); United States ex rel. Johnson v. Shaughnessy, 336 U.S. 806 (1949); United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950); Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953); United States ex rel. Accardi v. Shaugh- nessy, 347 U.S. 260 (1954). Some finality era cases pre- sented pure questions of law, while others involved the ap- plication of a legal test to particular facts. At least one involved an alien who had entered illegally. See id., at 262. But none was based on the Suspension Clause. No majority opinion even mentioned the Suspension Clause.25 Indeed, any mention of the Constitution was rare—and unhelpful to respondent’s arguments here.26 And in all the cited cases concerning aliens detained at entry, unlike the case now be- fore us, what was sought—and the only relief considered— was release. Indeed, in an early finality era case, the Court took pains to note that it did not “express any opinion” on whether an alien was entitled to enter. Lem Moon Sing v. United States, 158 U.S. 538, 549 (1895). Like the dissent, respondent makes much of certain statements in Heikkila v. Barber, 345 U.S. 229 (1953), which he interprets to substantiate his interpretation of Nishimura Ekiu and the subsequent entry cases discussed above. But he takes these statements out of context and reads far too much into them. Heikkila was not a habeas —————— 25 In a concurrence in United States ex rel. Turner v. Williams, 194 U.S. 279 (1904), Justice Brewer stated without elaboration and without citing any authority that the Suspension Clause prohibits Congress from “oust[ing] the courts from the duty of inquiry respecting both law and facts” in habeas cases. Id., at 295. No other Justice joined that opinion. 26 In Fong Yue Ting v. United States, 149 U.S. 698, 713 (1893), and many other cases, the Court noted that the Constitution gives Congress plenary power to set requirements for admission. 32 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM Opinion of the Court case, and the question before the Court was whether a de- portation order was reviewable under the Administrative Procedure Act (APA). The Court held that the order was not subject to APA review because the Immigration Act of 1917 foreclosed “judicial review”—as opposed to review in habeas. 345 U.S., at 234–235. Nothing in Heikkila sug- gested that the 1891 Act had been found to be partly uncon- stitutional, and Heikkila certainly did not address the scope of the writ of habeas corpus in 1789. In sum, the Court exercised habeas jurisdiction in the fi- nality era cases because the habeas statute conferred that authority, not because it was required by the Suspension Clause. As a result, these cases cannot support respond- ent’s argument that the writ of habeas corpus as it was un- derstood when the Constitution was adopted would have al- lowed him to claim the right to administrative and judicial review while still in custody. C We come, finally, to the more recent cases on which re- spondent relies. The most recent, Boumediene, is not about immigration at all. It held that suspected foreign terrorists could challenge their detention at the naval base in Guan- tanamo Bay, Cuba. They had been “apprehended on the battlefield in Afghanistan” and elsewhere, not while cross- ing the border. 553 U.S., at 734. They sought only to be released from Guantanamo, not to enter this country. See, e.g., Brief for Petitioner Al Odah et al. in Al Odah v. United States, decided with Boumediene v. Bush, O. T. 2007, No. 06–1196, p. 39 (arguing that “habeas contemplates but one remedy,” “release”). And nothing in the Court’s discussion of the Suspension Clause suggested that they could have used habeas as a means of gaining entry. Rather, the Court reaffirmed that release is the habeas remedy though not the “exclusive” result of every writ, given that it is often “appro- priate” to allow the executive to cure defects in a detention. Cite as: 591 U. S. ____ (2020) 33 Opinion of the Court 553 U.S., at 779. Respondent’s other recent case is St. Cyr, in which the Court’s pertinent holding rejected the argument that cer- tain provisions of IIRIRA and the Antiterrorism and Effec- tive Death Penalty Act of 1996 that did not refer expressly to habeas should nevertheless be interpreted as stripping the authority conferred by the habeas statute. In refusing to adopt that interpretation, the Court enlisted a quartet of interpretive canons: “the strong presumption in favor of ju- dicial review of administrative action,” “the longstanding rule requiring a clear statement of congressional intent to repeal habeas jurisdiction,” the rule that a “clear indica- tion” of congressional intent is expected when a proposed interpretation would push “the outer limits of Congress’ power,” and the canon of constitutional avoidance. 533 U.S., at 298–300. In connection with this final canon, the Court observed: “Because of [the Suspension] Clause, some ‘judicial intervention in deportation cases’ is unquestiona- bly ‘required by the Constitution.’ ” Id., at 300 (quoting Heikkila, 345 U.S., at 235). Respondent pounces on this statement, but like the Heik- kila statement on which it relies, it does nothing for him. The writ of habeas corpus as it existed at common law pro- vided a vehicle to challenge all manner of detention by gov- ernment officials, and the Court had held long before that the writ could be invoked by aliens already in the country who were held in custody pending deportation. St. Cyr re- affirmed these propositions, and this statement in St. Cyr does not signify approval of respondent’s very different at- tempted use of the writ, which the Court did not consider.27 —————— 27 The Government notes other distinctions between St. Cyr and this case, including that the alien in St. Cyr raised a pure question of law, while respondent raises at best a mixed question of law and fact. We have no need to consider these distinctions. 34 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM Opinion of the Court IV In addition to his Suspension Clause argument, respond- ent contends that IIRIRA violates his right to due process by precluding judicial review of his allegedly flawed credible- fear proceeding. Brief for Respondent 38–45. The Ninth Circuit agreed, holding that respondent “had a constitu- tional right to expedited removal proceedings that con- formed to the dictates of due process.” 917 F.3d, at 1111, n. 15 (internal quotation marks omitted). And the Ninth Circuit acknowledged, ibid., that this holding conflicted with the Third Circuit’s decision upholding §1252(e)(2) on the ground that applicants for admission lack due process rights regarding their applications, see Castro, 835 F.3d, at 445–446. Since due process provided an independent ground for the decision below and since respondent urges us to affirm on this ground, it is hard to understand the dis- sent’s argument that the due process issue was not “seri- ously in dispute below” or that it is somehow improper for us to decide the issue. Post, at 34. Nor is the dissent correct in defending the Ninth Circuit’s holding. That holding is contrary to more than a century of precedent. In 1892, the Court wrote that as to “foreigners who have never been naturalized, nor acquired any domicil or residence within the United States, nor even been admit- ted into the country pursuant to law,” “the decisions of ex- ecutive or administrative officers, acting within powers ex- pressly conferred by Congress, are due process of law.” Nishimura Ekiu, 142 U.S., at 660. Since then, the Court has often reiterated this important rule. See, e.g., Knauff, 338 U.S., at 544 (“Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned”); Mezei, 345 U.S., at 212 (same); Landon v. Plasencia, 459 U.S. 21, 32 (1982) (“This Court has long held that an alien seeking initial admission to the United States requests a privilege and has no constitutional rights regard- ing his application, for the power to admit or exclude aliens Cite as: 591 U. S. ____ (2020) 35 Opinion of the Court is a sovereign prerogative”). Respondent argues that this rule does not apply to him because he was not taken into custody the instant he at- tempted to enter the country (as would have been the case had he arrived at a lawful port of entry). Because he suc- ceeded in making it 25 yards into U. S. territory before he was caught, he claims the right to be treated more favora- bly. The Ninth Circuit agreed with this argument. We reject it. It disregards the reason for our century-old rule regarding the due process rights of an alien seeking initial entry. That rule rests on fundamental propositions: “[T]he power to admit or exclude aliens is a sovereign pre- rogative,” id., at 32; the Constitution gives “the political de- partment of the government” plenary authority to decide which aliens to admit, Nishimura Ekiu, 142 U.S., at 659; and a concomitant of that power is the power to set the pro- cedures to be followed in determining whether an alien should be admitted, see Knauff, 338 U.S., at 544. This rule would be meaningless if it became inoperative as soon as an arriving alien set foot on U. S. soil. When an alien arrives at a port of entry—for example, an interna- tional airport—the alien is on U. S. soil, but the alien is not considered to have entered the country for the purposes of this rule. On the contrary, aliens who arrive at ports of en- try—even those paroled elsewhere in the country for years pending removal—are “treated” for due process purposes “as if stopped at the border.” Mezei, 345 U.S., at 215; see Leng May Ma v. Barber, 357 U.S. 185, 188–190 (1958); Kaplan v. Tod, 267 U.S. 228, 230–231 (1925). The same must be true of an alien like respondent. As previously noted, an alien who tries to enter the country il- legally is treated as an “applicant for admission,” §1225(a)(1), and an alien who is detained shortly after un- lawful entry cannot be said to have “effected an entry,” Zadvydas v. Davis, 533 U.S. 678, 693 (2001). Like an alien 36 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM Opinion of the Court detained after arriving at a port of entry, an alien like re- spondent is “on the threshold.” Mezei, 345 U.S., at 212. The rule advocated by respondent and adopted by the Ninth Circuit would undermine the “sovereign prerogative” of governing admission to this country and create a perverse incentive to enter at an unlawful rather than a lawful loca- tion. Plasencia, 459 U.S., at 32. For these reasons, an alien in respondent’s position has only those rights regarding admission that Congress has provided by statute. In respondent’s case, Congress pro- vided the right to a “determin[ation]” whether he had “a significant possibility” of “establish[ing] eligibility for asy- lum,” and he was given that right. §§1225(b)(1)(B)(ii), (v). Because the Due Process Clause provides nothing more, it does not require review of that determination or how it was made. As applied here, therefore, §1252(e)(2) does not vio- late due process.28 * * * Because the Ninth Circuit erred in holding that §1252(e)(2) violates the Suspension Clause and the Due Process Clause, we reverse the judgment and remand the case with directions that the application for habeas corpus be dismissed. It is so ordered. —————— 28 Although respondent, during his interviews with immigration offi- cials, does not appear to have provided any information tying the assault he suffered at the hands of those who arrived at his home in a van to persecution on the basis of ethnicity or political opinion, his counseled petition offers details about “white va[n]” attacks against Tamils in Sri Lanka. App. 25–26 (internal quotation marks omitted). As now por- trayed, his assault resembles those incidents. Department officials and immigration judges may reopen cases or reconsider decisions, see 8 CFR §§103.5(a)(1), (5), and 1003.23(b)(1), and the Executive always has dis- cretion not to remove, see AAADC, 525 U.S., at 483–484. Cite as: 591 U. S. ____ (2020) 1 THOMAS, J., concurring SUPREME COURT OF THE UNITED STATES _________________ No. 19–161 _________________ DEPARTMENT OF HOMELAND SECURITY, ET AL., PETITIONERS v.

Every year, hundreds of thousands of aliens are appre- hended at or near the border attempting to enter this coun- try illegally. Many ask for asylum, claiming that they would be persecuted if returned to their home countries. Some of these claims are valid, and by granting asylum, the United States lives up to its ideals and its treaty obliga- tions. Most asylum claims, however, ultimately fail, and some are fraudulent. In 1996, when Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA), –546, it crafted a system for weeding out patently meritless claims and expeditiously re- moving the aliens making such claims from the country. It was Congress’s judgment that detaining all asylum seekers until the full-blown removal process is completed would place an unacceptable burden on our immigration system and that releasing them would present an undue risk that they would fail to appear for removal proceedings. This case concerns the constitutionality of the system 2 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM Opinion of the Court Congress devised. Among other things, IIRIRA placed re- strictions on the ability of asylum seekers to obtain review under the federal habeas statute, but the United States Court of Appeals for the Ninth Circuit held that these re- strictions are unconstitutional. According to the Ninth Cir- cuit, they unconstitutionally suspend the writ of habeas corpus and violate asylum seekers’ right to due process. We now review that decision and reverse. Respondent’s Suspension Clause argument fails because it would extend the writ of habeas corpus far beyond its scope “when the Constitution was drafted and ratified.” Indeed, re- spondent’s use of the writ would have been unrecognizable at that time. Habeas has traditionally been a means to se- cure release from unlawful detention, but respondent in- vokes the writ to achieve an entirely different end, namely, to obtain additional administrative review of his asylum claim and ultimately to obtain authorization to stay in this country. Respondent’s due process argument fares no better. While aliens who have established connections in this coun- try have due process rights in deportation proceedings, the Court long ago held that Congress is entitled to set the con- ditions for an alien’s lawful entry into this country and that, as a result, an alien at the threshold of initial entry cannot claim any greater rights under the Due Process Clause. See Nishimura Respondent attempted to enter the country illegally and was apprehended just 25 yards from the He there- fore has no entitlement to procedural rights other than those afforded by statute. In short, under our precedents, neither the Suspension Clause nor the Due Process Clause of the Fifth Amendment requires any further review of respondent’s claims, and IIRIRA’s limitations on habeas review are constitutional as applied. Cite as: 591 U. S. 3 Opinion of the Court I A We begin by briefly outlining the provisions of immigra- tion law that are pertinent to this case. Under those provi- sions, several classes of aliens are “inadmissible” and there- fore “removable.” 8 U.S. C. 1229a(e)(2)(A). These include aliens who lack a valid entry document “at the time of application for admission.” An alien who arrives at a “port of entry,” i.e., a place where an alien may lawfully enter, must apply for admission. An alien like respondent who is caught trying to enter at some other spot is treated the same way. (3). If an alien is inadmissible, the alien may be removed. The usual removal process involves an evidentiary hearing before an immigration judge, and at that hearing an alien may attempt to show that he or she should not be removed. Among other things, an alien may apply for asylum on the ground that he or she would be persecuted if returned to his or her home country. (c) If that claim is rejected and the alien is ordered re- moved, the alien can appeal the removal order to the Board of Immigration Appeals and, if that appeal is unsuccessful, the alien is generally entitled to review in a federal court of appeals. 8 U.S. C. 1252(a). As of the first quarter of this fiscal year, there were 1,066, pending re- moval proceedings. See Executive Office for Immigration Review (EOIR), Adjudication Statistics: Pending Cases The average civil appeal takes approximately one year.1 During the time when removal is being litigated, the alien will either be detained, at considerable expense, or allowed to reside in this country, with the attendant risk —————— 1 See Administrative Office of the U. S. Courts, Federal Judicial Case- load Statistics, U. S. Courts of Appeals—Median Time Intervals in Months for Civil and Criminal Appeals Terminated on the Merits (Table B–4A) (time calculated for non-prisoner appeals from the filing of a notice of appeal to the last opinion or final order). 4 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM Opinion of the Court that he or she may not later be found. Congress addressed these problems by providing more expedited procedures for certain “applicants for admission.” For these purposes, “[a]n alien present in the United States who has not been admitted or who arrives in the United States (whether or not at a designated port of arrival )” is deemed “an applicant for admission.” An applicant is subject to expedited removal if, as relevant here, the applicant (1) is inadmissible because he or she lacks a valid entry document; (2) has not “been physically present in the United States continuously for the 2-year pe- riod immediately prior to the date of the determination of inadmissibility”; and (3) is among those whom the Secre- tary of Homeland Security has designated for expedited re- moval. (iii)(I)–(II).3 Once “an immigra- tion officer determines” that a designated applicant “is inadmissible,” “the officer [must] order the alien removed from the United States without further hearing or review.” Applicants can avoid expedited removal by claiming asy- lum. If an applicant “indicates either an intention to apply for asylum” or “a fear of persecution,” the immigration of- ficer “shall refer the alien for an interview by an asylum officer.” The point of this screening interview is to determine whether the applicant has a “cred- ible fear of ” The applicant need not show that he or she is in fact eligible for asylum— a “credible fear” equates to only a “significant possibility” —————— 2 When respondent entered the country, aliens were treated as appli- cants for admission if they were “encountered within 14 days of entry without inspection and within 100 air miles of any U. S. international land ” (2004). 3 This authority once belonged to the Attorney General, who is still named in the statute. See 6 U.S. C. (transferring authority over “[t]he detention and removal program” to the Department). Cite as: 591 U. S. 5 Opinion of the Court that the alien would be eligible. Thus, while eligibil- ity ultimately requires a “well-founded fear of persecution on account of,” among other things, “race” or “political opin- ion,” 1158(b)(1)(A), all that an alien must show to avoid expedited removal is a “credible fear.”4 If the asylum officer finds an applicant’s asserted fear to be credible,5 the applicant will receive “full consideration” of his asylum claim in a standard removal hearing. 8 CFR ); see 8 U.S. C. If the asylum officer finds that the applicant does not have a credible fear, a supervisor will review the asylum officer’s determination. (e)(8). If the supervisor agrees with it, the applicant may appeal to an immigration judge, who can take further evidence and “shall make a de novo determination.” (d)(1); see 8 U.S. C. An alien subject to expedited removal thus has an oppor- tunity at three levels to obtain an asylum hearing, and the —————— 4 A grant of asylum enables an alien to enter the country, but even if an applicant qualifies, an actual grant of asylum is discretionary. 5 The asylum officer also considers an alien’s potential eligibility for withholding of removal under or relief under the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT). (e)(2)–(3). Respondent’s habeas pe- tition alleges that “he can show a significan[t] possibility that he could establish eligibility for asylum, withholding of removal, and CAT claims.” App. 31–. But he says in his petition that he left Sri Lanka “to seek asylum in the United States.” He discusses the crite- ria only for asylum. ; see also Brief for Respondent 4. And he now alleges that he was improperly “denied asylum.” Moreover, the gravamen of his petition is that he faces persecution in Sri Lanka “because of ” his Tamil ethnicity and political opinions. App. 13. To ob- tain withholding or CAT relief on that basis, he would need to show “a greater likelihood of persecution or torture at home than is necessary for asylum.” And he would not avoid removal, only removal to Sri Lanka. 8 U.S. C. (A); We therefore read his petition as it is plainly intended: to seek another opportunity to apply for asylum. 6 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM Opinion of the Court applicant will obtain one unless the asylum officer, a super- visor, and an immigration judge all find that the applicant has not asserted a credible fear. Over the last five years, nearly 77% of screenings have resulted in a finding of credible fear.6 And nearly half the remainder (11% of the total number of screenings) were closed for administrative reasons, including the alien’s withdrawal of the claim.7 As a practical matter, then, the great majority of asylum seekers who fall within the cate- gory subject to expedited removal do not receive expedited removal and are instead afforded the same procedural rights as other aliens. Whether an applicant who raises an asylum claim re- ceives full or only expedited review, the applicant is not en- titled to immediate release. Applicants “shall be detained pending a final determination of credible fear of persecution and, if found not to have such a fear, until removed.” Applicants who are found to have a credible fear may also be detained pending further consid- eration of their asylum applications. see Jennings v. Rodriguez, 583 U. S. (slip op., at 3, 13).8 B The IIRIRA provision at issue in this case, limits the review that an alien in expedited removal may obtain via a petition for a writ of habeas corpus. That pro- vision allows habeas review of three matters: first, “whether the petitioner is an alien”; second, “whether the petitioner was ordered removed”; and third, whether the —————— 6 See GAO, Immigration: Actions Needed To Strengthen USCIS’s Over- sight and Data Quality of Credible and Reasonable Fear Screenings 13– 15, and fig. 2 7 See n. b. 8 The Department may grant temporary parole “for urgent humanitar- ian reasons or significant public benefit.” 8 U.S. C. see also (b), 235.3(b)(2)(iii), and (4)(ii). Cite as: 591 U. S. 7 Opinion of the Court petitioner has already been granted entry as a lawful per- manent resident, refugee, or asylee. If the petitioner has such a status, or if a removal order has not “in fact” been “issued,” the court may order a removal hearing, A major objective of IIRIRA was to “protec[t] the Execu- tive’s discretion” from undue interference by the courts; in- deed, “that can fairly be said to be the theme of the legisla- tion.” In accordance with that aim, provides that “[t]here shall be no review of whether the alien is actually inadmissible or entitled to any relief from removal.” And “[n]otwithstanding” any other “habeas corpus provision”—including 28 U.S. C. “no court shall have jurisdiction to review” any other “indi- vidual determination” or “claim arising from or relating to the implementation or operation of an order of [expedited] removal.” In particular, courts may not review “the determination” that an alien lacks a credible fear of see also (iv) (other specific limitations). Even without the added step of judicial review, the credible-fear process and abuses of it can increase the bur- dens currently “overwhelming our immigration system.” 84 Fed. Reg. 338419 The past decade has seen a 1,883% —————— 9 References to the factual material in this regulation are not endorse- ments of the regulation itself. And like the immigration officials in this case, we do not question the basis for respondent’s asserted fear. See infra, at 9. But we note the Department’s view that credible-fear claims can be asserted “in the hope of a lengthy asylum process that will enable [the claimants] to remain in the United States for years despite their statutory ineligibility for relief ” and that an influx of meritless claims can delay the adjudication of meritorious ones; strain detention capacity and degrade detention conditions; cause the release of many inadmissi- ble aliens into States and localities that must shoulder the resulting costs; divert Department resources from protecting the border; and ag- gravate “the humanitarian crisis created by human smugglers.” 84 Fed. 8 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM Opinion of the Court increase in credible-fear claims, and in alone, there were 99,035 claims. See The majority have proved to be meritless. Many applicants found to have a credible fear—about % over the same 10-year period—did not pursue asylum. See EOIR, Adjudication Statistics: Rates of Asylum Filings in Cases Originating With a Credible Fear Claim ; see also (noting that many instead ab- scond). In a grant of asylum followed a finding of credible fear just 15% of the time. See EOIR, Asylum Deci- sion Rates in Cases Originating With a Credible Fear Claim Fraudulent asylum claims can also be difficult to detect,10 especially in a screening process that is designed to be expedited and that is currently handling almost 100,000 claims per year. The question presented thus has significant conse- quences for the immigration system. If courts must review credible-fear claims that in the eyes of immigration officials —————— Reg. 33831; see also, e.g., Violent Crime Control and Law Enforcement Act of 1994, (legislative finding of “a drain on limited resources resulting from the high cost of processing friv- olous asylum claims”); 397–398 (2012); Homeland Security Advisory Council, Final Emergency Interim Report 1, 7–8 ; Letter from K. Nielsen, Secretary of Home- land Security, to Members of Congress 1–2 ; GAO, Asy- lum: Additional Actions Needed To Assess and Address Fraud Risks 24 (GAO–16–, Dec. 2015) (GAO Fraud Report); Congressional Budget Of- fice, The Impact of Unauthorized Immigrants on the Budgets of State and Local Governments 8–9 (Dec. 2007); Brief for State of Arizona et al. as Amici Curiae 9–12. 10 See, e.g., GAO Fraud Report –33 (discussing Operation Fiction Writer, a criminal investigation of attorneys and application preparers who counseled asylum seekers to lie about religious persecution and forced abortions); Asylum Fraud: Abusing America’s Compassion? Hear- ing before the Subcommittee on Immigration and Border Security of the House Committee on the Judiciary, 113th Cong., 2d Sess. (testi- mony of Louis D. Crocetti, Jr.) (describing study in which 58% of ran- domly selected asylum applications exhibited indicators of possible fraud and 12% were determined to be fraudulent). Cite as: 591 U. S. 9 Opinion of the Court and an immigration judge do not meet the low bar for such claims, expedited removal would augment the burdens on that system. Once a fear is asserted, the process would no longer be expedited. C Respondent Vijayakumar Thuraissigiam, a Sri Lankan national, crossed the southern border without inspection or an entry document at around 11 p.m. one night in January 2017. App. 38. A Border Patrol agent stopped him within 25 yards of the border, and the Department detained him for expedited removal. at 37–39, 106; see 1225(b)(1)(A)(ii), and (b)(1)(B)(iii)(IV). He claimed a fear of returning to Sri Lanka because a group of men had once abducted and severely beaten him, but he said that he did not know who the men were, why they had assaulted him, or whether Sri Lankan authorities would protect him in the future. He also affirmed that he did not fear persecution based on his race, political opin- ions, or other protected characteristics. at 76–77; see The asylum officer credited respondent’s account of the assault but determined that he lacked a “credible” fear of persecution, as defined by because he had offered no evidence that could have made him eligible for asylum (or other removal relief ). ; see The supervising officer agreed and signed the removal order. 4, 107. After hearing further testimony from respondent, an Immigration Judge affirmed on de novo review and returned the case to the Department for removal. Respondent then filed a federal habeas petition. Assert- ing for the first time a fear of persecution based on his Tamil ethnicity and political views, –13, he argued that he “should have passed the credible fear stage,” at 30. But, he alleged, the immigration officials deprived him 10 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM Opinion of the Court of “a meaningful opportunity to establish his claims” and violated credible-fear procedures by failing to probe past his denial of the facts necessary for asylum. Al- legedly they also failed to apply the “correct standard” to his claims—the “significant possibility” standard—despite its repeated appearance in the records of their decisions. ; see 3, 84–89, 97. Respondent requested “a writ of habeas corpus, an injunction, or a writ of manda- mus directing [the Department] to provide [him] a new op- portunity to apply for asylum and other applicable forms of relief.” His petition made no mention of release from custody. The District Court dismissed the petition, holding that and (e)(2) and clear Ninth Circuit case law foreclosed review of the negative credible-fear determina- tion that resulted in respondent’s expedited removal order. The court also rejected respondent’s argument “that the jurisdictional lim- itations of violate the Suspension Clause,” again relying on Circuit precedent. at 1082–1083. The Ninth Circuit reversed. It found that our Suspension Clause precedent demands “reference to the writ as it stood in 1789.” But without citing any pre-1789 case about the scope of the writ, the court held that (2) violates the Suspension Clause. See at 1113–1119. The court added that respondent “has proce- dural due process rights,” specifically the right “ ‘to expe- dited removal proceedings that conformed to the dictates of due process.’ ” at n. 15 ). Although the decision applied only to respondent, petitioners across the Circuit have used it to obtain review outside the scope of and petitioners elsewhere have attempted to Cite as: 591 U. S. 11 Opinion of the Court follow suit.11 The Ninth Circuit’s decision invalidated the application of an important provision of federal law and conflicted with a decision from another Circuit, see We granted certiorari, 589 U. S. II A The Suspension Clause provides that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U. S. Const., Art. I, cl. 2. In we wrote that the Clause, at a minimum, “protects the writ as it existed in 1789,” when the Constitution was adopted. 1 (internal quota- tion marks omitted). And in this case, respondent agrees that “there is no reason” to consider whether the Clause ex- tends any further. Brief for Respondent 26, n. 12. We therefore proceed on that basis.12 —————— 11 See, e.g., (“Given the identical claims here as in Thuraissigiam, the Court concludes it has jurisdiction over Petitioner’s habeas petition under the Suspension Clause”); Kaur v. Barr, WL 4974425, (granting stay of re- moval in light of the decision below); Rodrigues v. McAleenan, WL 363041, *2, *6 (declining to follow the decision below). 12 The original meaning of the Suspension Clause is the subject of con- troversy. In the majority and dissent debated whether the Clause independently guarantees the availability of the writ or simply restricts the temporary withholding of its operation. Compare 0, with 6–341 (Scalia, J., dissenting). See also Ex parte Bollman, We do not revisit that ques- tion. Nor do we consider whether the scope of the writ as it existed in 1789 defines the boundary of the constitutional protection to which the St. Court referred, since the writ has never encompassed respond- ent’s claims. 12 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM Opinion of the Court B This principle dooms respondent’s Suspension Clause ar- gument, because neither respondent nor his amici have shown that the writ of habeas corpus was understood at the time of the adoption of the Constitution to permit a peti- tioner to claim the right to enter or remain in a country or to obtain administrative review potentially leading to that result. The writ simply provided a means of contesting the lawfulness of restraint and securing release. In 1768, Blackstone’s Commentaries—usually a “satis- factory exposition of the common law of England,” Schick v. United States, 1 U.S. 65, —made this clear. Blackstone wrote that habeas was a means to “remov[e] the injury of unjust and illegal confinement.” 3 W. Blackstone, Commentaries on the Laws of England 137 (emphasis de- leted). Justice Story described the “common law” writ the same way. See 3 Commentaries on the Constitution of the United States p. 206 (1833). Habeas, he explained, “is the appropriate remedy to ascertain whether any person is rightfully in confinement or not.” We have often made the same point. See, e.g., v. Rodriguez, (“It is clear from the common-law history of the writ that the essence of habeas corpus is an attack by a person in custody upon the legality of that custody, and that the traditional function of the writ is to secure release from illegal custody”); Wil- ; v. Geren, 3 —————— We also do not reconsider whether the common law allowed the issu- ance of a writ on behalf of an alien who lacked any allegiance to the coun- try. Compare –747 (form- ing “no certain conclusions”), with Brief for Criminal Justice Legal Foundation as Amicus Curiae 5–13. See also Hamburger, Beyond Pro- tection, ; P. Halliday, Habeas Cor- pus: From England to Empire 204 (2010) (Halliday). Cite as: 591 U. S. 13 Opinion of the Court In this case, however, respondent did not ask to be re- leased.13 Instead, he sought entirely different relief: vaca- tur of his “removal order” and “an order directing [the De- partment] to provide him with a new opportunity to apply for asylum and other relief from removal.” App. 14 (habeas petition). See also (“a fair procedure to apply for asylum, withholding of removal, and CAT relief”); (“a new, meaningful opportunity to apply for asy- lum and other relief from removal”). Such relief might fit an injunction or writ of mandamus—which tellingly, his pe- tition also requested, —but that relief falls outside the scope of the common-law habeas writ. Although the historic role of habeas is to secure release from custody, the Ninth Circuit did not suggest that re- lease, at least in the traditional sense of the term,14 was re- quired. Instead, what it found to be necessary was a “mean- ingful opportunity” for review of the procedures used in determining that respondent did not have a credible fear of Thus, even according to —————— 13 In his brief, respondent states that “he requests an entirely ordinary habeas remedy: conditional release pending a lawful adjudication. J. A. 33.” Brief for Respondent 29. Citing the same page, the dissent argues that respondent “asked the district court to ‘[i]ssue a writ of habeas cor- pus’ without further limitation on the kind of relief that might entail.” Post, at 7 (opinion of SOTOMAYOR, J.) (quoting App. 33). However, neither on the cited page nor at any other place in the habeas petition is release, conditional or otherwise, even mentioned. And in any event, as we dis- cuss infra, –21, the critical point is that what he sought in the ha- beas petition and still seeks—a writ “directing [the Department] to pro- vide [him] a new opportunity to apply for asylum,” App. 33—is not a form of relief that was available in habeas at the time of the adoption of the Constitution. 14 Although the Ninth Circuit never mentioned release, its opinion might be read to suggest that gaining a right to remain in this country would constitute a release from the “restraint” of exclusion. See 917 F.3d 1097, 1117 No evidence has been called to our attention that the writ was understood in 1789 to apply to any comparable form of restraint. 14 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM Opinion of the Court the Ninth Circuit, respondent’s petition did not call for tra- ditional habeas relief. Not only did respondent fail to seek release, he does not dispute that confinement during the pendency of expedited asylum review, and even during the additional proceedings he seeks, is lawful. Nor could he. It is not disputed that he was apprehended in the very act of attempting to enter this country; that he is inadmissible because he lacks an entry document, see 1225(b)(1)(A)(i); and that, under these circumstances, his case qualifies for the expe- dited review process, including “[m]andatory detention” during his credible-fear review, (iii)(IV). Moreover, simply releasing him would not provide the right to stay in the country that his petition ultimately seeks. Without a change in status, he would remain subject to ar- rest, detention, and removal. 1229a(e)(2). While respondent does not claim an entitlement to re- lease, the Government is happy to release him—provided the release occurs in the cabin of a plane bound for Sri Lanka. That would be the equivalent of the habeas relief Justice Story ordered in a case while riding circuit. He is- sued a writ requiring the release of a foreign sailor who jumped ship in Boston, but he provided for the sailor to be released into the custody of the master of his ship. Ex parte D’Olivera, (No. 3,967) (CC Mass. 1813). Respondent does not want anything like that. His claim is more reminiscent of the one we rejected in In that case, American citizens held in U. S. custody in Iraq filed habeas petitions in an effort to block their transfer to Iraqi authorities for criminal prosecution. See 553 U.S., at 2. Rejecting this use of habeas, we noted that “[h]abeas is at its core a remedy for unlawful executive detention” and that what these individuals wanted was not “simple re- lease” but an order requiring them to be brought to this country. at 3, 7. Claims so far outside the “core” of habeas may not be pursued through See, e.g., Cite as: 591 U. S. 15 Opinion of the Court Like the habeas petitioners in respondent does not want “simple release” but, ultimately, the opportunity to remain lawfully in the United States. That he seeks to stay in this country, while the habeas petitioners in asked to be brought here from Iraq, see post, –20 (opin- ion of SOTOMAYOR, J.), is immaterial. In this case as in the relief requested falls outside the scope of the writ as it was understood when the Constitution was adopted. See –451 (Hardiman, J., concurring dubitante) (“Petitioners here seek to alter their status in the United States in the hope of avoiding release to their homelands. That prayer for relief dooms the merits of their Suspension Clause argument” (emphasis de- leted)). III Disputing this conclusion, respondent argues that the Suspension Clause guarantees a broader habeas right. To substantiate this claim, he points to three bodies of case law: British and American cases decided prior to or around the time of the adoption of the Constitution, decisions of this Court during the so-called “finality era” (running from the late 19th century to the mid-20th century), and two of our more recent cases. None of these sources support his argument. A Respondent and amici supporting his position have done considerable research into the use of habeas before and around the time of the adoption of the Constitution,15 but —————— 15 Respondent and his amici rely primarily on British cases decided be- fore the adoption of the Constitution. “There is widespread agreement that the common-law writ of habeas corpus was in operation in all thir- teen of the British colonies that rebelled in 1776,” but “almost no re- ported decisio[n] from the period.” Oldham & Wishnie, The Historical Scope of Habeas Corpus and 16 Geo. Immigration L. J. 16 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM Opinion of the Court they have not unearthed evidence that habeas was then used to obtain anything like what is sought here, namely, authorization for an alien to remain in a country other than his own or to obtain administrative or judicial review lead- ing to that result. All that their research (and the dissent’s) shows is that habeas was used to seek release from deten- tion in a variety of circumstances. In fact, respondent and his amici do not argue that their cases show anything more. See Brief for Respondent 27 (arguing that habeas was “available” at the founding “to test all forms of physical re- straint”); Brief for Scholars of the Law of Habeas Corpus as Amici Curiae 11 (the “historical record demonstrates that the touchstone for access to the writ” was “whether the petitioner challenges control of his person”). Because respondent seeks to use habeas to obtain some- thing far different from simple release, his cause is not aided by the many release cases that he and his amici have found. Thus, for present purposes, it is immaterial that ha- beas was used to seek release from confinement that was imposed for, among other things, contempt of court (see Bushell’s Case, Vaugh. 135, 124 Eng. Rep. 1006 (C. P. 1670)), debt (see Hollingshead’s Case, 1 Salk. 351, 91 Eng. Rep. 307 (K. B. 1702); Rex v. Nathan, 2 Str. 880, 93 Eng. Rep. 914 (K. B. 1724)), medical malpractice (see Dr. Groen- velt’s Case, 1 Raym. Ld. 213, 91 Eng. Rep. 1038 (K. B. 1702)), failing to pay an assessment for sewers (see Hetley v. Boyer, Cro. Jac. 336, Eng. Rep. 287 (K. B. 1613)), fail- ure to lend the King money (see Darnel’s Case, 3 How. St. Tr. 1 (K. B. 1627)), carrying an authorized “dagg,” i.e., hand- gun (see Gardener’s Case, Cro. Eliz. 821, 78 Eng. Rep. 1048 (K. B. 1600)), “impressment” into military service or invol- untary servitude (see St. 533 U.S., 2), or refusing to pay a colonial tax (see Oldham & Wishnie 496). Nor does it matter that common-law courts sometimes ordered or —————— 485, 496 (2002) (Oldham & Wishnie) (internal quotation marks omitted). Cite as: 591 U. S. 17 Opinion of the Court considered ordering release in circumstances that would be beyond the reach of any habeas statute ever enacted by Congress, such as release from private custody. See, e.g., Rex v. Delaval, 3 Burr. 1434, 1435–1437, 97 Eng. Rep. 913, 914 (K. B. 1763) (release of young woman from “indentures of apprenticeship”); Rex v. Clarkson, 1 Str. 444, 93 Eng. Rep. 625 (K. B. 1722) (release from boarding school); Lister’s Case, 8 Mod. 22, 88 Eng. Rep. 17 (K. B. 1721) (release of wife from estranged husband’s restraint). What matters is that all these cases are about release from restraint. Ac- cord, 411 U.S., at –485, and nn. 3–5.16 Respondent and his amici note that habeas petitioners were sometimes released on the condition that they conform to certain requirements. See Brief for Respondent 30; Legal Historians Brief 18. For example, they cite a case in which a man was released on condition that he treat his wife well and support her, and another in which a man was released on condition that he issue an apology. But what re- spondent sought in this case is nothing like that. Respond- ent does not seek an order releasing him on the condition that he do or refrain from doing something. What he wants—further review of his asylum claim—is not a condi- tion with which he must comply. Equally irrelevant is the practice, discussed in the dissent, of allowing the executive to justify or cure a defect in detention before requiring re- lease. See post, –18. Respondent does not seek this sort of conditional release either, because the legality of his detention is not in question. —————— 16 Respondent’s amici also point out that, during the English Civil War, Parliament created a national religion and a “bewildering array of com- mittees” to manage the war. Brief for Legal Historians as Amici Curiae 10 (Legal Historians Brief ) (internal quotation marks omitted). They argue that “[h]abeas corpus was readily available to test the legality of their actions.” But according to their source, the challenged actions were “imprisonment orders,” including imprisonment of clergymen who refused to conform. Halliday 163–164. 18 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM Opinion of the Court Respondent contends that two cases show that habeas could be used to secure the right of a non-citizen to remain in a foreign country, but neither proves his point. His first case, involving a Scot named Murray, is one for which no official report is available for us to review.17 We could hardly base our decision here on such a decision.18 His second case, Somerset v. Stewart, Lofft. 1, 98 Eng. Rep. 499 (K. B. 1772), is celebrated but does not aid re- spondent. James Somerset was a slave who was “de- tain[ed]” on a ship bound for Jamaica, and Lord Mansfield famously ordered his release on the ground that his deten- tion as a slave was unlawful in England. 98 Eng. Rep., 10. This relief, release from custody, fell within the historic core of habeas, and Lord Mansfield did not or- der anything else. It may well be that a collateral consequence of Somerset’s release was that he was allowed to remain in England, but if that is so, it was due not to the writ issued by Lord Mans- field, but to English law regarding entitlement to reside in the country. At the time, England had nothing like modern immigration restrictions. As late as 1816, the word “depor- tation” apparently “was not to be found in any English dic- —————— 17 Respondent cites a secondary source, which in turn cites to the Na- tional Archives in London. See Brief for Respondent 27 (citing Halliday 236). 18 Whether the founding generation understood habeas relief more broadly than described by Blackstone, Justice Story, and our prior cases, see cannot be settled by a single case or even a few obscure and possibly aberrant cases. And in any event, what is said here about Murray’s case provides little support for respondent’s position. In 1677, we are told, Murray was imprisoned in England so that he could be “ ‘sent into Scotland’ ” for a criminal trial, but the King’s Bench twice issued a writ of habeas corpus requiring his release. Brief for Respondent 27 (quoting Halliday 236). Putting aside the “delicate” relationship between England and Scotland at the time, issu- ance of a writ to secure the release of a person held in pretrial custody is far afield from what respondent wants here. Cite as: 591 U. S. 19 Opinion of the Court tionary.” The Use of the Crown’s Power of Deportation Un- der the Aliens Act, 13–1826, in J. Dinwiddy, Radicalism and Reform in Britain, 1780–18, p. 1, n. 4 (1992); see also, e.g., Craies, The Right of Aliens To Enter British Ter- ritory, 6 L. Q. Rev. 27, 35 (1890) (“England was a complete asylum to the foreigner who did not offend against its laws”); Haycraft, Alien Legislation and the Prerogative of the Crown, 13 L. Q. Rev. 165, 180 (1897) (“There do not ap- pear to have been any transactions in Parliament or in the [Crown’s] Privy Council directly affecting [deportation] from the time of Elizabeth [I] to that of George III”).19 For a similar reason, respondent cannot find support in early 19th-century American cases in which deserting for- eign sailors used habeas to obtain their release from the custody of American officials. In none of the cases involving deserters that have been called to our attention did the court order anything more than simple release from cus- tody. As noted, Justice Story ordered a sailor’s release into the custody of his ship’s master. See Ex parte D’Olivera, 7 F. Cas., at Other decisions, while ordering the re- lease of detained foreign deserters because no statute au- thorized detention, chafed at having to order even release. See Case of the Deserters from the British Frigate L’Afri- caine, 3 Am. L. J. & Misc. Repertory 1, 135–136 (Md. 1810) (reporting judge’s statement “that he never would in- terfere to prevent” the British consul himself from detain- ing British deserters); Case of Hippolyte Dumas, 2 Am. L. J. & Misc. Repertory 86, 87 (Pa. 1809) (noting “inconven- ience” that U. S. law did not discourage desertion of foreign sailors); 396 (Pa. 1815) (opinion of Tilghman, C. J.) ; at —————— 19 This regime lasted until after 1789, when the Aliens Act of 13 au- thorized justices of the peace to imprison “without bail or mainprize” (i.e., bond) any alien found without a passport, who could then be “sen[t] out of th[e] realm.” An Act for Regulating Immigration into Great Britain, 33 Geo. III, ch. 4, 29. 20 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM Opinion of the Court 397 (opinion of Yeates, J.) These cases thus do not contemplate the quite different relief that respondent asks us to sanction here. In these cases, as in Somerset, it may be that the released petitioners were able to remain in the United States as a collateral consequence of release, but if so, that was due not to the writs ordering their release, but to U. S. immigration law or the lack thereof. These decisions came at a time when an “open door to the immigrant was the federal policy.” n. 15 (12); see also St. 533 U.S., 5 (first immi- gration regulation enacted in 1875). So release may have had the side effect of enabling these individuals to remain in this country, but that is beside the point. The relief that a habeas court may order and the collat- eral consequences of that relief are two entirely different things. Ordering an individual’s release from custody may have the side effect of enabling that person to pursue all sorts of opportunities that the law allows. For example, re- lease may enable a qualified surgeon to operate on a pa- tient; a licensed architect may have the opportunity to de- sign a bridge; and a qualified pilot may be able to fly a passenger jet. But a writ of habeas could not be used to compel an applicant to be afforded those opportunities or as a means to obtain a license as a surgeon, architect, or pilot. Similarly, while the release of an alien may give the alien the opportunity to remain in the country if the immigration laws permit, we have no evidence that the writ as it was known in 1789 could be used to require that aliens be per- mitted to remain in a country other than their own, or as a means to seek that permission. Respondent’s final examples involve international extra- dition, but these cases are no more pertinent than those al- ready discussed. For one thing, they post-date the founding era. England was not a party to any extradition treaty in 1789, and this country’s first extradition treaty was the Jay Cite as: 591 U. S. 21 Opinion of the Court Treaty of 14. See 1 J. Moore, Extradition and Interstate Rendition 78, pp. 10, 89 (1891). In any event, extradi- tion cases, similar to the deserter cases, illustrate nothing more than the use of habeas to secure release from custody when not in compliance with the extradition statute and relevant treaties. As noted by a scholar on whose work re- spondent relies, these cases “examine[d] the lawfulness of magistrates’ decisions permitting the executive to detain al- iens.” Neuman, Habeas Corpus, Executive Detention, and the Removal of Aliens, In these cases, as in all the others noted above, habeas was used “simply” to seek release from allegedly unlawful de- tention. See also, e.g., In re Stupp, (No. 13,) (CC SDNY 1875).20 Despite pages of rhetoric, the dissent is unable to cite a single pre-1789 habeas case in which a court ordered relief that was anything like what respondent seeks here. The —————— 20 Amici supporting respondent make an additional argument. They contend that “[i]n eighteenth century practice, the authority of English judges to review habeas petitions was not constrained by past decisions” and that these judges felt free to innovate in order to ensure that justice was done. Legal Historians Brief 5–6. But the role of federal courts un- der our Constitution is very different from that of those English judges. The English judges “were considered agents of the Crown, designed to assist the King in the exercise of his power.” 553 U.S., at 740. The court with primary habeas jurisdiction, after all, was called the King’s Bench, on which the King “was theoretically always present.” Halliday & White, The Suspension Clause: English Text, Imperial Con- texts, and American Implications, and n. 49 Habeas was an exercise of the King’s prerogative “to have an account why the liberty of any of his subjects is restrained.” 2 J. Story, Commentaries on the Constitution of the United States p. 207 (1833); accord, Legal Historians Brief 5–7. In our federal courts, by contrast, the scope of habeas has been tightly regulated by statute, from the Judiciary Act of 1789 to the present day, and precedent is as binding in a habeas case as in any other. See, e.g., Jenkins v. Hutton, 582 U. S. (2017) (per curiam) (slip op., at 4). 22 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM Opinion of the Court dissent instead contends that “the Suspension Clause in- quiry does not require a close (much less precise) factual match with historical habeas precedent,” post, at 11, and then discusses cases that are not even close to this one. The dissent reveals the true nature of its argument by suggest- ing that there are “inherent difficulties [in] a strict original- ist approach in the habeas context because of, among other things, the dearth of reasoned habeas decisions at the founding.” But respondent does not ask us to hold that the Suspension Clause guarantees the writ as it might have evolved since the adoption of the Constitution. On the contrary, as noted at the outset of this discussion, he rests his argument on “the writ as it existed in 1789.” Brief for Respondent 26, n. 12. What the dissent merely implies, one concurring opinion states expressly, arguing that the scope of the writ guaran- teed by the Suspension Clause “may change ‘depending upon the circumstances’ ” and thus may allow certain aliens to seek relief other than release. Post, at 3 (BREYER, J., concurring in judgment) (quoting 553 U.S., at 7). But that is not respondent’s argument, and as a gen- eral rule “we rely on the parties to frame the issues for de- cision and assign to courts the role of neutral arbiter of mat- ters the parties present.” United States v. Sineneng-Smith, 590 U. S. (slip op., at 3) (internal quotation marks omitted). In any event, the concurrence’s snippets of quotations from are taken entirely out of con- text. They relate to the question whether the statutory re- view procedures for Guantanamo detainees seeking release from custody provided an adequate substitute for a habeas petition seeking release. See infra, at –33. They do not suggest that any habeas writ guaranteed by the Suspension Clause permits a petitioner to obtain relief that goes far be- Cite as: 591 U. S. 23 Opinion of the Court yond the “core” of habeas as “a remedy for unlawful execu- tive detention.” 553 U.S., at 3.21 B We now proceed to consider the second body of case law on which respondent relies, decisions of this Court during the “finality era,” which takes its name from a feature of the Immigration Act of 1891 making certain immigration deci- sions “final.” Although respondent claims that his argu- ment is supported by “the writ as it existed in 1789,” Brief for Respondent 26, n. 12, his argument focuses mainly on this body of case law, which began a century later. These cases, he claims, held that “the Suspension Clause man- dates a minimum level of judicial review to ensure that the —————— 21 This concurrence imagines three horrible possibilities that it fears could come to pass unless we interpret the Suspension Clause to protect the right to some undefined category of relief beyond release from cus- tody. See post, at 2 (opinion of BREYER, J.). But its interpretation is nei- ther necessary nor obviously sufficient to prevent the possibilities it fears. First, if a citizen were detained for deportation, today’s opinion would not prevent the citizen from petitioning for release. Second, if re- spondent’s “procedural” claims do not merit habeas review, as the con- currence concludes, post, at 8, it is not clear why habeas should help the concurrence’s hypothetical alien whose credible-fear claim was rejected based on forged evidence. Both respondent and this hypothetical alien assert procedural irregularities. Does the availability of habeas review depend on a judge’s view of the severity of the irregularity asserted? Fi- nally, there is the hypothetical alien denied asylum on the ground that Judaism is not a religion. Such a decision would of course be ridiculous, but why it would not raise a question of “brute fac[t]” that falls outside the concurrence’s interpretation of the Suspension Clause, post, is again not clear. Whatever may be said about the concurrence’s hypotheticals, it is pos- sible to imagine all sorts of abuses not even remotely related to unau- thorized executive detention that could be imposed on people in this country if the Constitution allowed Congress to deprive the courts of any jurisdiction to entertain claims regarding such abuses. If that were to happen, it would no doubt be argued that constitutional provisions other than the Suspension Clause guaranteed judicial review. We have no oc- casion to consider such arguments here. 24 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM Opinion of the Court Executive complies with the law in effectuating removal.” at 11–12. The Ninth Circuit also relied heavily on these cases and interpreted them to “suggest that the Suspension Clause requires review of legal and mixed questions of law and fact related to removal orders.” This interpretation of the “finality era” cases is badly mis- taken. Those decisions were based not on the Suspension Clause but on the habeas statute and the immigration laws then in force. The habeas statute in effect during this time was broad in scope. It authorized the federal courts to re- view whether a person was being held in custody in viola- tion of any federal law, including immigration laws. Thus, when aliens claimed that they were detained in violation of immigration statutes, the federal courts considered whether immigration authorities had complied with those laws. This, of course, required that the immigration laws be interpreted, and at the start of the finality era, this Court interpreted the 1891 Act’s finality provision to block review of only questions of fact. Accordingly, when writs of habeas corpus were sought by aliens who were detained on the ground that they were not entitled to enter this country, the Court considered whether, given the facts found by the im- migration authorities, the detention was consistent with applicable federal law. But the Court exercised that review because it was authorized to do so by statute. The decisions did not hold that this review was required by the Suspen- sion Clause. In this country, the habeas authority of federal courts has been addressed by statute from the very beginning. The Judiciary Act of 1789, gave the federal courts the power to issue writs of habeas corpus under spec- ified circumstances, but after the Civil War, Congress en- acted a much broader statute. That law, the Habeas Cor- pus Act of 1867, provided that “the several courts of the United States shall have power to grant writs of habeas corpus in all cases where any person may be restrained of Cite as: 591 U. S. 25 Opinion of the Court his or her liberty in violation of the constitution, or of any treaty or law of the United States.” Judiciary Act of Feb. 5, 1867, The Act was “of the most compre- hensive character,” bringing “within the habeas corpus ju- risdiction of every court and of every judge every possible case of privation of liberty contrary” to federal law. Ex parte McCardle, This ju- risdiction was “impossible to widen.” ; see Fay v. Noia, (noting the Act’s “expansive language” and “imperative tone”). The 1867 statute, unlike the current federal habeas statute, was not subject to re- strictions on the issuance of writs in immigration matters, and in United the Court held that an alien in immigration custody could seek a writ under that statute. This provided the statutory basis for the writs sought in the finality era cases. The Immigration Act of 1891, enacted during one of the country’s great waves of immigration, required the exclu- sion of certain categories of aliens and established proce- dures for determining whether aliens fell within one of those categories. The Act required the exclusion of “idiots, insane persons, paupers or persons likely to become a public charge,” persons with infectious diseases, persons with con- victions for certain crimes, some individuals whose passage had been paid for by a third party, and certain laborers. Act of Mar. 3, 1891, ch. 551, Inspection offic- ers were authorized to board arriving vessels and inspect any aliens on board. And, in the provision of central importance here, the Act provided that “[a]ll de- cisions made by the inspection officers or their assistants touching the right of any alien to land, when adverse to such right, shall be final unless appeal be taken to the su- perintendent of immigration, whose action shall be subject to review by the Secretary of the Treasury.” Later 26 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM Opinion of the Court immigration Acts, which remained in effect until 12,22 contained similar provisions. See Act of 1894, ; Immigration Act of 1907, ; Immigration Act of 1917, The first of the finality era cases, Nishimura v. United States, required the Court to address the effect of the 1891 Act’s finality provision in a habeas case. Nishimura is the cornerstone of respond- ent’s argument regarding the finality era cases, so the opin- ion in that case demands close attention. The case involved an alien who was detained upon arrival based on the immigration inspector’s finding that she was liable to become a public charge. Seeking to be released, the alien applied to the Circuit Court for a writ of habeas corpus and argued that the 1891 Act, if construed to give immigration authorities the “exclusive authority to deter- mine” her right to enter, would violate her constitutional right to the writ of habeas corpus and her right to due pro- cess. The Circuit Court refused to issue the writ, holding that the determination of the inspector of immigration was not subject to review, and the alien then appealed. This Court upheld the denial of the writ. The Court in- terpreted the 1891 Act to preclude judicial review only with respect to questions of fact. at And after inter- preting the 1891 Act in this way, the Court found that “the act of 1891 is constitutional.” The Court’s narrow interpretation of the 1891 Act’s final- ity provision meant that the federal courts otherwise re- tained the full authority granted by the Habeas Corpus Act of 1867 to determine whether an alien was detained in vio- lation of federal law. Turning to that question, the Court —————— 22 See (15) (interpret- ing 12 Immigration and Nationality Act, to provide for review of deportation orders). Cite as: 591 U. S. 27 Opinion of the Court held that the only procedural rights of an alien seeking to enter the country are those conferred by statute. “As to such persons,” the Court explained, “the decisions of execu- tive or administrative officers, acting within powers ex- pressly conferred by Congress, are due process of law.” at The Court therefore considered whether the proce- dures set out in the 1891 Act had been followed, and finding no violation, affirmed the denial of the writ. at 661– 664. What is critical for present purposes is that the Court did not hold that the Suspension Clause imposed any limi- tations on the authority of Congress to restrict the issuance of writs of habeas corpus in immigration matters. Respondent interprets Nishimura differently. See Brief for Respondent 13–15. As he reads the decision, the Court interpreted the 1891 Act to preclude review of all questions related to an alien’s entitlement to enter the coun- try. Any other interpretation, he contends, would fly in the face of the statutory terms. But, he maintains, the Court held that this limitation violated the Suspension Clause ex- cept with respect to questions of fact, and it was for this reason that the Court considered whether the procedures specified by the 1891 Act were followed. In other words, he reads Nishimura as holding that the 1891 Act’s final- ity provision was unconstitutional in most of its applica- tions (i.e., to all questions other than questions of fact). This interpretation is wrong. The opinion in Nishimura states unequivocally that “the act of 1891 is constitu- tional,” not that it is constitutional only in part. And if there is any ambiguity in the opinion regarding the Court’s interpretation of the finality provision, the later de- cision in left no doubt. What Nishimura meant, Gegiow explained, was that the immigration authorities’ factual findings were conclu- sive (as Gegiow put it, “[t]he conclusiveness of the decisions of immigration officers is conclusiveness upon matters of fact”) and therefore, the Court was “not forbidden by the 28 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM Opinion of the Court statute to consider” in a habeas proceeding “whether the reasons” for removing an alien “agree with the require- ments of the act.” In light of this interpre- tation, the Nishimura Court had no occasion to decide whether the Suspension Clause would have tolerated a broader limitation, and there is not so much as a hint in the opinion that the Court considered this question. Indeed, the opinion never even mentions the Suspension Clause, and it is utterly implausible that the Court would hold sub silentio that Congress had violated that provision. Holding that an Act of Congress unconstitutionally sus- pends the writ of habeas corpus is momentous. See (noting “the care Congress has taken throughout our Nation’s history” to avoid suspen- sion). The Justices on the Court at the beginning of the fi- nality era had seen historic occasions when the writ was suspended—during the Civil War by President Lincoln and then by Congress, and later during Reconstruction by Pres- ident Grant. See (2004) (Scalia, J., dissenting) (discussing these events). The suspension of habeas during this era played a prominent role in our constitutional history. See Ex parte Merryman, 151–152 (No. 9,487) (CC Md. 1861) (Taney, C. J.); Ex parte Milligan, (Two of the Justices at the beginning of the finality era were on the Court when Ex parte Milligan was decided.) The Jus- tices knew a suspension of the writ when they saw one, and it is impossible to believe that the Nishimura Court identified another occasion when Congress had suspended the writ and based its decision on the Suspension Clause without even mentioning that provision. The dissent’s interpretation of Nishimura is differ- ent from respondent’s. According to the dissent, Nishimura interpreted the 1891 Act as it did based on the doc- trine of constitutional avoidance. See post, at 22. This reading has no support in the Court’s opinion, which never Cite as: 591 U. S. 29 Opinion of the Court mentions the Suspension Clause or the avoidance doctrine and never explains why the Clause would allow Congress to preclude review of factual findings but nothing more. But even if there were some basis for this interpretation, it would not benefit respondent, and that is undoubtedly why he has not made the argument. IIRIRA unequivocally bars habeas review of respondent’s claims, see and he does not argue that it can be read any other way. The avoidance doctrine “has no application in the absence of am- biguity.” (inter- nal quotation marks and ellipsis omitted). Thus, if Nishi- mura ’s interpretation were based on constitutional avoidance, it would still not answer the interpretive ques- tion here. When we look to later finality era cases, any suggestion of a Suspension Clause foundation becomes even less plau- sible. None of those decisions mention the Suspension Clause or even hint that they are based on that provision, and these omissions are telling. On notable occasions dur- ing that time, the writ was suspended—in the Philippines in 190623 and Hawaii in 1941.24 During World War II, the Court held that “enemy aliens” could utilize habeas “unless there was suspension of the writ.” In re Yamashita, 7 U.S. 1, 9 And the Court invoked the Suspension Clause in holding that the Executive lacked authority to in- tern a Japanese-American citizen. See Ex parte Endo, 3 U.S. 283, 297–299 (1944). If the Justices during that time had thought that the Suspension Clause provided the au- thority they were exercising in the many cases involving habeas petitions by aliens detained prior to entry, it is hard —————— 23 While the Philippines was a Territory, its government suspended ha- beas to deal with “ ‘certain organized bands’ ” of rebels. 1–181 24 The Governor of Hawaii suspended habeas, with President Roose- velt’s approval, after the attack on Pearl Harbor. See 30 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM Opinion of the Court to believe that this important fact would have escaped men- tion. Respondent suggests that Nishimura cannot have interpreted the 1891 Act’s finality provision to apply only to factual questions because the statutory text categorically bars all review. The important question here, however, is what the Court did in Nishimura not whether its in- terpretation was correct, and in any event, there was a rea- sonable basis for the Court’s interpretation. The determinations that the immigration officials were required to make under the 1891 Act were overwhelmingly factual in nature. The determination in Nishimura’s case— that she was likely to become a public charge—seems to have been a pure question of fact, and the other grounds for exclusion under the Act involved questions that were either solely or at least primarily factual in nature. If we were now called upon to determine the meaning of a provision like the finality provision in the 1891 Act, our precedents would provide the basis for an argument in fa- vor of the interpretation that the Nishimura Court reached. The presumption in favor of judicial review, see, e.g., Guerrero-Lasprilla v. Barr, 589 U. S. (slip op., at 6); Nasrallah v. Barr, 590 U. S. – (slip op., at 7–9), could be invoked. So could the rule that “[i]mplications from statutory text or legislative his- tory are not sufficient to repeal habeas jurisdiction.” St. ; accord, Ex parte Yerger, 105 (18). Thus, respondent’s interpretation of the deci- sion in Nishimura is wrong, and the same is true of his understanding of the later finality era cases. Rather than relying on the Suspension Clause, those cases simply involved the exercise of the authority con- ferred by the habeas statute then in effect. This was true of Nishimura Gegiow, and every other finality era case that respondent cites in support of his Suspension Clause argument. See, e.g., Gonzales v. Williams, 192 U. S. Cite as: 591 U. S. 31 Opinion of the Court 1 ; Yee ; Tod v. Waldman, ; United States ex rel. 284 U.S. 2 ; United States ex rel. ; United States ex rel. (10); Shaughnessy v. United States ex rel. 345 U.S. 206 (13); United States ex rel. (14). Some finality era cases pre- sented pure questions of law, while others involved the ap- plication of a legal test to particular facts. At least one involved an alien who had entered illegally. See But none was based on the Suspension Clause. No majority opinion even mentioned the Suspension Clause.25 Indeed, any mention of the Constitution was rare—and unhelpful to respondent’s arguments here.26 And in all the cited cases concerning aliens detained at entry, unlike the case now be- fore us, what was sought—and the only relief considered— was release. Indeed, in an early finality era case, the Court took pains to note that it did not “express any opinion” on whether an alien was entitled to enter. Lem Moon Sing v. United States, (18). Like the dissent, respondent makes much of certain statements in (13), which he interprets to substantiate his interpretation of Nishimura and the subsequent entry cases discussed above. But he takes these statements out of context and reads far too much into them. was not a habeas —————— 25 In a concurrence in United States ex rel. Turner v. Williams, 194 U.S. 2 Justice Brewer stated without elaboration and without citing any authority that the Suspension Clause prohibits Congress from “oust[ing] the courts from the duty of inquiry respecting both law and facts” in habeas cases. at 2. No other Justice joined that opinion. 26 In Fong Yue 149 U.S. 8, and many other cases, the Court noted that the Constitution gives Congress plenary power to set requirements for admission. DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM Opinion of the Court case, and the question before the Court was whether a de- portation order was reviewable under the Administrative Procedure Act (APA). The Court held that the order was not subject to APA review because the Immigration Act of 1917 foreclosed “judicial review”—as opposed to review in –235. Nothing in sug- gested that the 1891 Act had been found to be partly uncon- stitutional, and certainly did not address the scope of the writ of habeas corpus in 1789. In sum, the Court exercised habeas jurisdiction in the fi- nality era cases because the habeas statute conferred that authority, not because it was required by the Suspension Clause. As a result, these cases cannot support respond- ent’s argument that the writ of habeas corpus as it was un- derstood when the Constitution was adopted would have al- lowed him to claim the right to administrative and judicial review while still in custody. C We come, finally, to the more recent cases on which re- spondent relies. The most recent, is not about immigration at all. It held that suspected foreign terrorists could challenge their detention at the naval base in Guan- tanamo Bay, Cuba. They had been “apprehended on the battlefield in Afghanistan” and elsewhere, not while cross- ing the They sought only to be released from Guantanamo, not to enter this country. See, e.g., Brief for Petitioner Al Odah et al. in Al Odah v. United States, decided with O. T. 2007, No. 06–1196, p. 39 (arguing that “habeas contemplates but one remedy,” “release”). And nothing in the Court’s discussion of the Suspension Clause suggested that they could have used habeas as a means of gaining entry. Rather, the Court reaffirmed that release is the habeas remedy though not the “exclusive” result of every writ, given that it is often “appro- priate” to allow the executive to cure defects in a detention. Cite as: 591 U. S. 33 Opinion of the Court 553 U.S., at 7. Respondent’s other recent case is St. in which the Court’s pertinent holding rejected the argument that cer- tain provisions of IIRIRA and the Antiterrorism and Effec- tive Death Penalty Act of 1996 that did not refer expressly to habeas should nevertheless be interpreted as stripping the authority conferred by the habeas statute. In refusing to adopt that interpretation, the Court enlisted a quartet of interpretive canons: “the strong presumption in favor of ju- dicial review of administrative action,” “the longstanding rule requiring a clear statement of congressional intent to repeal habeas jurisdiction,” the rule that a “clear indica- tion” of congressional intent is expected when a proposed interpretation would push “the outer limits of Congress’ power,” and the canon of constitutional avoidance. 533 U.S., at 298–300. In connection with this final canon, the Court observed: “Because of [the Suspension] Clause, some ‘judicial intervention in deportation cases’ is unquestiona- bly ‘required by the Constitution.’ ” 0 (quoting ). Respondent pounces on this statement, but like the Heik- kila statement on which it relies, it does nothing for him. The writ of habeas corpus as it existed at common law pro- vided a vehicle to challenge all manner of detention by gov- ernment officials, and the Court had held long before that the writ could be invoked by aliens already in the country who were held in custody pending deportation. St. re- affirmed these propositions, and this statement in St. does not signify approval of respondent’s very different at- tempted use of the writ, which the Court did not consider.27 —————— 27 The Government notes other distinctions between St. and this case, including that the alien in St. raised a pure question of law, while respondent raises at best a mixed question of law and fact. We have no need to consider these distinctions. 34 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM Opinion of the Court IV In addition to his Suspension Clause argument, respond- ent contends that IIRIRA violates his right to due process by precluding judicial review of his allegedly flawed credible- fear proceeding. Brief for Respondent 38–45. The Ninth Circuit agreed, holding that respondent “had a constitu- tional right to expedited removal proceedings that con- formed to the dictates of due process.” 917 F.3d, at n. 15 (internal quotation marks omitted). And the Ninth Circuit acknowledged, ib that this holding conflicted with the Third Circuit’s decision upholding (2) on the ground that applicants for admission lack due process rights regarding their applications, see 835 F.3d, at 445–446. Since due process provided an independent ground for the decision below and since respondent urges us to affirm on this ground, it is hard to understand the dis- sent’s argument that the due process issue was not “seri- ously in dispute below” or that it is somehow improper for us to decide the issue. Post, at 34. Nor is the dissent correct in defending the Ninth Circuit’s holding. That holding is contrary to more than a century of precedent. In 1892, the Court wrote that as to “foreigners who have never been naturalized, nor acquired any domicil or residence within the United States, nor even been admit- ted into the country pursuant to law,” “the decisions of ex- ecutive or administrative officers, acting within powers ex- pressly conferred by Congress, are due process of law.” Nishimura 142 U.S., at Since then, the Court has often reiterated this important rule. See, e.g., 338 U.S., 44 (“Whatever the procedure authorized by Congress is, it is due process as far as an alien denied entry is concerned”); 345 U.S., 2 ; Landon v. 35 Opinion of the Court is a sovereign prerogative”). Respondent argues that this rule does not apply to him because he was not taken into custody the instant he at- tempted to enter the country (as would have been the case had he arrived at a lawful port of entry). Because he suc- ceeded in making it 25 yards into U. S. territory before he was caught, he claims the right to be treated more favora- bly. The Ninth Circuit agreed with this argument. We reject it. It disregards the reason for our century-old rule regarding the due process rights of an alien seeking initial entry. That rule rests on fundamental propositions: “[T]he power to admit or exclude aliens is a sovereign pre- rogative,” at ; the Constitution gives “the political de- partment of the government” plenary authority to decide which aliens to admit, Nishimura ; and a concomitant of that power is the power to set the pro- cedures to be followed in determining whether an alien should be admitted, see 338 U.S., 44. This rule would be meaningless if it became inoperative as soon as an arriving alien set foot on U. S. soil. When an alien arrives at a port of entry—for example, an interna- tional airport—the alien is on U. S. soil, but the alien is not considered to have entered the country for the purposes of this rule. On the contrary, aliens who arrive at ports of en- try—even those paroled elsewhere in the country for years pending removal—are “treated” for due process purposes “as if stopped at the ” 345 U.S., 5; see Leng May (18); The same must be true of an alien like respondent. As previously noted, an alien who tries to enter the country il- legally is treated as an “applicant for admission,” and an alien who is detained shortly after un- lawful entry cannot be said to have “effected an entry,” 3 Like an alien 36 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM Opinion of the Court detained after arriving at a port of entry, an alien like re- spondent is “on the threshold.” 345 U.S., 2. The rule advocated by respondent and adopted by the Ninth Circuit would undermine the “sovereign prerogative” of governing admission to this country and create a perverse incentive to enter at an unlawful rather than a lawful loca- tion. 459 U.S., at For these reasons, an alien in respondent’s position has only those rights regarding admission that Congress has provided by statute. In respondent’s case, Congress pro- vided the right to a “determin[ation]” whether he had “a significant possibility” of “establish[ing] eligibility for asy- lum,” and he was given that right. (v). Because the Due Process Clause provides nothing more, it does not require review of that determination or how it was made. As applied here, therefore, (2) does not vio- late due process.28 * * * Because the Ninth Circuit erred in holding that (2) violates the Suspension Clause and the Due Process Clause, we reverse the judgment and remand the case with directions that the application for habeas corpus be dismissed. It is so ordered. —————— 28 Although respondent, during his interviews with immigration offi- cials, does not appear to have provided any information tying the assault he suffered at the hands of those who arrived at his home in a van to persecution on the basis of ethnicity or political opinion, his counseled petition offers details about “white va[n]” attacks against Tamils in Sri Lanka. App. 25–26 (internal quotation marks omitted). As now por- trayed, his assault resembles those incidents. Department officials and immigration judges may reopen cases or reconsider decisions, see 8 CFR (5), and23(b)(1), and the Executive always has dis- cretion not to remove, see –. Cite as: 591 U. S. 1 THOMAS, J., concurring SUPREME COURT OF THE UNITED STATES No. 19–161 DEPARTMENT OF HOMELAND SECURITY, ET AL., PETITIONERS v.

Justice Thomas

concurring

Department of Homeland Security v. Thuraissigiam

2020-06-25

https://www.courtlistener.com/opinion/4763596/department-of-homeland-security-v-thuraissigiam/

https://www.courtlistener.com/api/rest/v3/clusters/4763596/

I join the Court’s opinion, which correctly concludes that respondent’s Suspension Clause argument fails because he does not seek a writ of habeas corpus. I write separately to address the original meaning of the Suspension Clause, which guarantees that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Re- bellion or Invasion the public Safety may require it.” Art. I, §9, cl. 2. The Founders appear to have understood “[t]he Privilege of the Writ of Habeas Corpus” to guarantee free- dom from discretionary detention, and a “suspen[sion]” of that privilege likely meant a statute granting the executive the power to detain without bail or trial based on mere sus- picion of a crime or dangerousness. Thus, the expedited re- moval procedure in the Illegal Immigration Reform and Im- migrant Responsibility Act of 1996, 110 Stat. 3009–546, is likely not a suspension.1 I The writ of habeas corpus began as a prerogative writ in the Court of King’s Bench in the 16th century. J. Baker, An Introduction to English Legal History 157 (5th ed. 2019). —————— 1 I express no view on the question whether respondent is even entitled to the privilege of the writ as an unadmitted alien. 2 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM THOMAS, J., concurring Over time, however, it came to be understood both as a right to be free from arbitrary detention and as a procedural writ. By the end of the 16th century, the English connected the common-law writ of habeas corpus to liberty. Specifically, it was associated with the guarantee in Magna Carta that “[n]o free person (Nullus liber homo) shall be taken or im- prisoned, or disseised or outlawed or exiled, or in any way destroyed . . . except by the lawful judgment of his peers or by the law of the land.” Id., at 157, n. 76, 506. Perhaps most prominently, Edward Coke wrote in his Institutes that “if a man be taken, or committed to prison contra legem terrae, against the Law of the land,” then “[h]e may have an habeas corpus.” The Second Part of the Institutes of the Laws of England 55 (6th ed. 1681). For Coke, and for the many English (and later Americans) who read his work, “the writ was treated as an aspect of the Charter’s guar- anty.” D. Meador, Habeas Corpus and Magna Carta: Dual- ism of Power and Liberty 22 (1966). This association between habeas corpus and freedom from discretionary detention deepened after 1679 with the Habeas Corpus Act, also known as An Act for the better se- cureing the Liberty of the Subject and for Prevention of Im- prisonments beyond the Seas. The statute sought to ad- dress “great Delayes” in “criminall or supposed criminall Matters.” 31 Car. 2, ch. 2. It required an officer served with a writ of habeas corpus to produce the prisoner within three days in “any such criminall or supposed criminall Matters.” Ibid. It also guaranteed bail to prisoners in cases of felony or high treason if they were not tried within one term of court. Ibid. To protect these rights, Parliament created a special statutory remedy: All writs under the Habeas Cor- pus Act were marked as issuing pursuant to the statute. Ibid.; P. Halliday, Habeas Corpus: From England to Empire 320 (2010). Parliament passed the Habeas Corpus Act to curb the power of King Charles II, but it nonetheless came to be seen Cite as: 591 U. S. ____ (2020) 3 THOMAS, J., concurring as a protection for liberty, not just an assertion of the pow- ers of Parliament over the Crown. Henry Care, in the 1774 edition of his widely read treatise English Liberties, com- mented that “before this statute [the common-law writ of habeas corpus] was rendered far less useful than it ought to be, partly by the Judges pretending a power to grant or deny the said writ at their pleasure, in many cases; and es- pecially by the ill practices of Sheriffs and Goalers, by put- ting the prisoner to the charge and trouble of . . . a second and third writ, before they would obey the first.” 1 English Liberties, or the Free-born Subject’s Inheritance 195. The Habeas Corpus Act, he concluded, “provides thus for our lib- erty.” Id., at 198. William Blackstone put it even more sweepingly, writing that the Habeas Corpus Act “is fre- quently considered as another magna carta.” 3 Commen- taries on the Laws of England 135 (1770). II The Founders inherited this understanding of habeas corpus. And they enshrined it in the Suspension Clause, which they understood to protect a substantive right. The language of the Suspension Clause evinces this un- derstanding. The Clause itself does not authorize courts to issue writs of habeas corpus. INS v. St. Cyr, 533 U.S. 289, 337 (2001) (Scalia, J., dissenting); Ex parte Bollman, 4 Cranch 75, 94 (1807). Nor does it refer simply to the writ of habeas corpus. Rather, it protects the privilege of the writ of habeas corpus. The word “privilege” was “used in- terchangeably with the words ‘rights,’ ‘liberties,’ and ‘free- doms,’ and had been since the time of Blackstone.” McDon- ald v. Chicago, 561 U.S. 742, 813 (2010) (THOMAS, J., concurring in part and concurring in judgment). By using this term, the Framers appear to have had a substantive right in mind. Ratification debates reflect this understanding as well. Future Supreme Court Justice James Iredell said in the 4 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM THOMAS, J., concurring North Carolina convention that, “[b]y the privileges of the habeas corpus, no man can be confined without inquiry; and if it should appear that he has been committed contrary to law, he must be discharged.” 4 Debates in the Several State Conventions 171 (J. Elliot ed. 1891). Signer of the Consti- tution James McHenry told the Maryland House of Dele- gates that “[p]ublic safety may require a suspension of the Ha[beas] Corpus in cases of necessity: when those cases do not exist, the virtuous Citizen will ever be protected in his opposition to power.” 11 Documentary History of the Rati- fication of the Constitution 80, 84 (J. Kaminski et al. eds. 2015) (Documentary History). This understanding is echoed in statements that the Con- stitution protects the Habeas Corpus Act, the writ of habeas corpus, or simply “the habeas corpus,” all referring to a sub- stantive right. Alexander Hamilton wrote in The Federalist No. 83 that “the habeas corpus act” was “provided for in the most ample manner in the plan of the convention.” The Federalist No. 83, p. 499 (C. Rossiter ed. 1961). Again in No. 84, he wrote that the Constitution “establish[ed] the writ of habeas corpus.” Id., No. 84, at 511. In the Pennsyl- vania ratifying convention, Jasper Yeates said that the Sus- pension Clause “direct[ed] that the privilege of the habeas corpus act shall not be suspended except in times of imme- diate danger.” 2 Documentary History 434–435 (M. Jensen ed. 1976). In Virginia, Governor Edmund Randolph—a signer and future Attorney General—argued that “the ha- beas corpus is at least on as secure and good a footing as it is in England” because “[t]hat privilege is secured here by the Constitution.” 9 id., at 1099 (J. Kaminski & G. Saladino eds. 1990). Luther Martin of Maryland wrote that “the gen- eral government is to have a power of suspending the ha- beas corpus act, in cases of rebellion or invasion.” Genuine Information VIII, reprinted in 15 id., at 434 (J. Kaminski & G. Saladino eds. 1984). In Massachusetts, Theophilius Par- sons “made a Loud Speech on the Habeas Corpus act that Cite as: 591 U. S. ____ (2020) 5 THOMAS, J., concurring it will not be in the power of Gov[ern]ment to suspend the act only in time of war.” 7 id., at 1813 (J. Kaminski & G. Saladino eds. 2001). Other speakers and writers made sim- ilar references. See A. Tyler, Habeas Corpus in Wartime 132–133 (2017) (collecting examples). In sum, it seems that the founding generation viewed the privilege of the writ of habeas corpus as a freedom from arbitrary detention.2 III The remaining question is what it means for “[t]he Privi- lege of the Writ of Habeas Corpus” to “be suspended.” U. S. Const., Art. I, §9, cl. 2. At the founding, suspension was a well-known term that meant “a [t]emporal [s]top of a [m]an’s [r]ight.” N. Bailey, An Universal Etymological Eng- lish Dictionary (22d ed. 1770); see St. Cyr, 533 U.S., at 337– 338 (Scalia, J., dissenting). In the context of habeas corpus, —————— 2 None of this is to say that the writ of habeas corpus involved a wide- ranging, ever-changing inquiry. As the Court today reaffirms, “the scope of habeas has been tightly regulated by statute, from the Judiciary Act of 1789 to the present day.” Ante, at 21, n. 20. A writ of habeas corpus was “in the nature of a writ of error, to examine the legality of the com- mitment.” Ex parte Watkins, 3 Pet. 193, 202 (1830) (Marshall, C. J.). When an executive detained someone without trial, it allowed a court to “examine into [the] validity” of “the reason for” commitment. 3 W. Black- stone, Commentaries on the Laws of England 133 (1770). In cases of detention pursuant to the judgment of a court, “a prisoner seeking a writ of habeas corpus could challenge only the jurisdiction of the court that had rendered the judgment under which he was in custody.” Wright v. West, 505 U.S. 277, 285 (1992) (opinion of THOMAS, J.). In both contexts, the writ “played only a procedural role: It issued as of right when a pris- oner showed probable cause to believe he was being held illegally . . . and obligated the warden to file a ‘return’ identifying the grounds of impris- onment.” Jennings v. Stephens, 574 U.S. 271, 285 (2015) (THOMAS, J., dissenting). When the writ of habeas corpus was granted, it “decided nothing except that there was a case calling for an answer by the gaoler.” Goddard, A Note on Habeas Corpus, 65 L. Q. Rev. 30, 34 (1949). “After reviewing the reason so returned, the court could release, bail, or remand the prisoner as appropriate.” J. Baker, An Introduction to English Legal History 157 (5th ed. 2019). 6 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM THOMAS, J., concurring it appears to have specifically meant a grant of authority to the executive to detain without bail or trial based on suspi- cion of a crime or dangerousness. The English understood the term this way. Blackstone called it “the happiness of [the English] constitution” that “the parliament only, or legislative power, . . . can authorize the crown, by suspending the habeas corpus act for a short and limited time, to imprison suspected persons without giving any reason for so doing.” 1 Commentaries on the Laws of England, at 136. Bills known as suspensions granted broad power to detain based on suspicion of a crime. For example, in 1777, Lord Germaine introduced a bill “ ‘to empower his Majesty to secure and detain Persons charged with, or suspected of, the Crime of High Treason committed in North America, or on the High Seas, or the Crime of Piracy.’ ” 19 W. Cobbett, The Parliamentary His- tory of England 4 (1814). The bill allowed certain prisoners to be detained “ ‘without bail or mainprize’ ”3 and prohibited any “ ‘judge or justice of peace’ ” from “ ‘bail[ing] or try[ing] any such person or persons, . . . any law, statute, or usage, to the contrary in any wise notwithstanding.’ ” Id., at 5. The text contained no mention of the Habeas Corpus Act, but it nevertheless was referred to as a “suspension of the Habeas Corpus Act.” Id., at 9–10. As one historian has written, suspensions “were officially acts ‘empowering his majesty to apprehend and detain such persons as he shall find cause to suspect’ ” and to do so “ ‘without bail or mainprise.’ ” Halliday, Habeas Corpus, at 248. Americans shared a similar understanding, as evidenced by the suspensions that States passed during the Revolu- tionary War. “By their common terms,” these suspensions —————— 3 Mainprise or mainprize is a “writ ordering the sheriff to take . . . se- curity . . . for the prisoner’s appearance and release the prisoner.” Black’s Law Dictionary 1142 (11th ed. 2019). Cite as: 591 U. S. ____ (2020) 7 THOMAS, J., concurring “bestowed authority on state executives to arrest and de- tain persons preventively based on suspicion of supporting the Crown.” Tyler, Habeas Corpus in Wartime, at 111. In 1777, Massachusetts authorized the detention of “any per- son whom the council shall deem the safety of the Common- wealth requires should be restrained of his personal liberty, or whose enlargement within this state is dangerous thereto” “without bail or mainpri[s][z]e.” 1776–1777 Mass. Acts ch. 45, §§1, 3, p. 641. Virginia similarly allowed the Governor and council to detain anyone “whom they may have just cause to suspect of disaffection to the independ- ence of the United States or of attachment to their ene- mies.” An act for giving certain powers to the governour and council, and for punishing those who shall oppose the execution of laws, reprinted in 10 W. Hening’s Statutes at Large 413–414 (1822). And New York created a board with power “to apprehend and confine or cause to be appre- hended or confined . . . all persons whose going at large shall in the judgment of the said commissioners or any three of them appear dangerous to the safety of this State.” An Act appointing commissioners for detecting and defeat- ing conspiracies and declaring their powers (Feb. 5, 1778), 1778 N. Y. Laws ch. 3, pp. 8–9; see also An Act for consti- tuting a Council of Safety (Oct. 11, 1777), 1777 N. J. Laws ch. 40, §4, p. 85; An Act to Empower the Supreme Executive Council of this Commonwealth to Provide for the Security Thereof in Special Cases Where No Provision Is Already Made by Law (Sept. 6, 1777), ch. 762, §2, 9 Statutes at Large of Pennsylvania 140 (J. Mitchell & H. Flanders eds. 1903); An Act to punish certain crimes and misdemeanors, and to prevent the growth of toryism, 1777 Md. Laws ch. 20, §7.4 —————— 4 It does not appear that it was necessary to expressly mention the availability of the writ in a suspending Act. Some States made express reference to the writ of habeas corpus, see, e.g., ch. 762, §2, 9 Statutes at Large of Pennsylvania 140, but many did not. 8 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM THOMAS, J., concurring Massachusetts continued using this formula for suspen- sions under its 1780 Constitution. These suspensions are especially probative because that Constitution contained language similar to the Federal Suspension Clause: “The privilege and benefit of the writ of habeas corpus shall be enjoyed in this Commonwealth in the most free, easy, cheap, expeditious and ample manner; and shall not be sus- pended by the Legislature, except upon the most urgent and pressing occasions, and for a limited time not exceeding twelve months.” Pt. 2, ch. VI, Art. VII. In response to Shays’ Rebellion, which gained notoriety across the United States, Massachusetts passed “An Act for Suspending the Privilege of the Writ of Habeas Corpus.” It provided that “the Governor, with the advice and consent of the Council, be and he hereby is authorised and empow- ered . . . to command, and cause to be apprehended, and committed in any Goal, or other safe place, within the Commonwealth, any person or persons whatsoever, whom the Governor and Council, shall deem the safety of the Commonwealth requires should be restrained of their personal liberty, or whose enlargement is danger- ous thereto; any Law, Usage or Custom to the contrary notwithstanding.” 1786–1787 Mass. Acts ch. 41, p. 102. The Act also provided that “any Person who shall be appre- hended and imprisoned, as aforesaid, shall be continued in imprisonment, without Bail or Mainprize, until he shall be discharged therefrom by order of the Governor, or of the General Court.” Id., at 103; see also An Act to Suspend the Privilege of the Writ of Habeas Corpus for Six Months (June 27, 1782), 1782–1783 Mass. Acts ch. 2, pp. 6–7. Thus, in a jurisdiction with an analog to the Suspension Clause, a sus- pension was a grant of power to detain without bail or trial based on suspicion of a crime or dangerousness. Cite as: 591 U. S. ____ (2020) 9 THOMAS, J., concurring Although the ratification debates are not especially illu- minating on the meaning of a suspension, they provide fur- ther support for this understanding. Luther Martin wrote that the Government, upon “suspending the habeas corpus act may seize upon the persons of those advocates of free- dom, who have had virtue and resolution enough to excite the opposition, and may imprison them during its pleas- ure.” Genuine Information VIII, reprinted in 15 Documen- tary History 434. Another essayist, writing in a Boston newspaper, explained that suspension would allow “the President, or President and Senate, as Congress shall think proper to empower, to take up and confine for any cause, or for any suspicion, or for no cause, perhaps any person, he or they shall think proper. 5 id., at 712 (J. Kaminski & G. Saladino eds. 1998). In sum, a suspension was not necessarily an express lim- itation on the availability of the writ of habeas corpus. Ra- ther, it appears to have been a grant of power to detain based on suspicion of a crime or dangerousness without bail or trial. IV Under this interpretation, 8 U.S. C. §1252 likely does not suspend the writ of habeas corpus. To be placed in expe- dited removal, an immigration officer must “determin[e]” that an alien is “inadmissible.” §1225(b)(1)(A)(i). That de- termination is based in part on the alien’s lack of valid en- try documentation and failure to satisfy a 2-year continu- ous physical presence requirement, not on mere suspicion or dangerousness. §§1225(b)(1)(A)(i), (iii)(II); §1182(a)(7). An alien has the opportunity to avoid expedited removal by demonstrating a “credible fear of persecution.” §§1225(b)(1)(B)(iii), (v). If the alien is unsuccessful, he may seek “[j]udicial review . . . in habeas corpus proceedings” of “whether [he] is an alien”; “whether [he] was ordered re- moved” under expedited removal; and “whether [he] can 10 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM THOMAS, J., concurring prove by a preponderance of the evidence that [he] is an al- ien lawfully admitted for permanent residence, has been admitted as a refugee . . . , or has been granted asylum” and “such status [has not] been terminated.” §1252(e)(2). This statute bears little resemblance to a suspension as that term was understood at the founding. It does not allow the executive to detain based on mere suspicion of a crime or dangerousness. Rather, it requires a finding that the de- tainee lacks valid documentation and is not eligible for asy- lum. It even expressly permits habeas relief for a detainee who does not meet certain criteria for expedited removal. Some may wish that the Suspension Clause were broader. Perhaps for this reason, our precedents have de- parted from the original understanding of the Suspension Clause. See, e.g., Boumediene v. Bush, 553 U.S. 723, 826– 850 (2008) (Scalia, J., dissenting); St. Cyr, 533 U.S., at 336– 341 (Scalia, J., dissenting). But this understanding does contain an important guarantee of individual liberty by lim- iting the circumstances in which Congress may give the ex- ecutive power to detain without bail or trial based on suspi- cion of a crime or dangerousness. In this case, that guarantee has not been violated. Cite as: 591 U. S. ____ (2020) 1 BREYER, J., concurring in judgment SUPREME COURT OF THE UNITED STATES _________________ No. 19–161 _________________ DEPARTMENT OF HOMELAND SECURITY, ET AL., PETITIONERS v. VIJAYAKUMAR THURAISSIGIAM ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [June 25, 2020] JUSTICE BREYER, with whom JUSTICE GINSBURG joins, concurring in the judgment. The statute at issue here, 8 U.S. C. §1252(e)(2), sets forth strict limits on what claims a noncitizen subject to expe- dited removal may present in federal habeas corpus pro- ceedings. I agree that enforcing those limits in this partic- ular case does not violate the Suspension Clause’s constitutional command: “The Privilege of the Writ of Ha- beas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U. S. Const., Art. I, §9, cl. 2. But we need not, and should not, go further. We need not go further because the Government asked us to decide, and we agreed to review, an issue limited to the case before us. The question presented is “whether, as ap- plied to respondent, Section 1252(e)(2) is unconstitutional under the Suspension Clause.” Pet. for Cert. i (emphasis added). All we must decide is whether, under the Suspen- sion Clause, the statute at issue “is unconstitutional as ap- plied to this party, in the circumstances of this case.” Chi- cago v. Morales, 527 U.S. 41, 74 (1999) (Scalia, J., dissenting). Nor should we go further. Addressing more broadly whether the Suspension Clause protects people challenging 2 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM BREYER, J., concurring in judgment removal decisions may raise a host of difficult questions in the immigration context. What review might the Suspen- sion Clause assure, say, a person apprehended years after she crossed our borders clandestinely and started a life in this country? Under current law, noncitizens who have lived in the United States for up to two years may be placed in expedited-removal proceedings, see §1225(b)(1)(A)(iii), but Congress might decide to raise that 2-year cap (or re- move it altogether). Does the Suspension Clause let Con- gress close the courthouse doors to a long-term permanent resident facing removal? In INS v. St. Cyr, 533 U.S. 289 (2001), we avoided just that “serious and difficult constitu- tional issue.” Id., at 305. Could Congress, for that matter, deny habeas review to someone ordered removed despite claiming to be a natural- born U. S. citizen? The petitioner in Chin Yow v. United States, 208 U.S. 8 (1908), and others have faced that pre- dicament. See also §1252(e)(2)(A) (permitting, at present, habeas review of citizenship claims). What about foreclos- ing habeas review of a claim that rogue immigration offi- cials forged the record of a credible-fear interview that, in truth, never happened? Or that such officials denied a ref- ugee asylum based on the dead-wrong legal interpretation that Judaism does not qualify as a “religion” under govern- ing law? Cf. Tod v. Waldman, 266 U.S. 113, 119–120 (1924) (observing that immigration officials ignored a Jew- ish family’s claim that they were “refugees” fleeing “reli- gious persecution”). The answers to these and other “difficult questions about the scope of [Suspension Clause] protections” lurk behind the scenes here. Lozman v. Riviera Beach, 585 U. S. ___, ___ (2018) (slip op., at 10). I would therefore avoid making statements about the Suspension Clause that sweep beyond the principles needed to decide this case—let alone come to conclusions about the Due Process Clause, a distinct consti- Cite as: 591 U. S. ____ (2020) 3 BREYER, J., concurring in judgment tutional provision that is not directly at issue here. Com- pare ibid. (concluding that, with narrow grounds for deci- sion available, resolving broader, more difficult questions “must await a different case”) with ante, at 12–16 (suggest- ing that removal is simply not the sort of “restraint” for which the Suspension Clause guarantees a means of “secur- ing release”), and ante, at 34–36 (addressing a separate due process question). As for the resolution of the dispute before us, Congress, in my view, had the constitutional power to foreclose habeas review of the claims that respondent has pressed in this case. Habeas corpus, as we have said, is an “adaptable rem- edy,” and the “precise application and scope” of the review it guarantees may change “depending upon the circum- stances.” Boumediene v. Bush, 553 U.S. 723, 779 (2008); see also id., at 813 (ROBERTS, C. J., dissenting). So where the Suspension Clause applies, the “habeas court’s role” may prove more “extensive,” or less so, depending on the context at issue. Id., at 780 (majority opinion). Here, even assuming that the Suspension Clause guarantees respond- ent some form of habeas review—which is to say, even ac- cepting for argument’s sake that the relief respondent seeks is “release,” contra, ante, at 22—the scope of that constitu- tionally required review would not extend to his claims. Two features of this case persuade me. First, respondent’s status suggests that the constitu- tional floor set by the Suspension Clause here cannot be high. A Border Patrol agent apprehended respondent just 25 yards inside the border. Respondent was placed in ex- pedited removal proceedings shortly thereafter, where he received the same consideration for relief from removal that Congress has afforded persons arriving at the border. Re- spondent has never lived in, or been lawfully admitted to, the United States. To my mind, those are among the “circumstances” that 4 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM BREYER, J., concurring in judgment inform the “scope” of any habeas review that the Suspen- sion Clause might guarantee respondent. Boumediene, 553 U.S., at 779. He is thus in a materially different position for Suspension Clause purposes than the noncitizens in, for example, Rowoldt v. Perfetto, 355 U.S. 115 (1957), United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954), Bridges v. Wixon, 326 U.S. 135 (1945), and Hansen v. Haff, 291 U.S. 559 (1934). They had all lived in this country for years. The scope of whatever habeas review the Suspension Clause assures respondent need not be as extensive as it might for someone in that position. Second, our precedents demonstrate that respondent’s claims are of the kind that Congress may, consistent with the Suspension Clause, make unreviewable in habeas pro- ceedings. Even accepting respondent’s argument that our “finality era” cases map out a constitutional minimum, see ante, at 23–24, his claims, on the facts presented here, differ significantly from those that we reviewed throughout this period. To begin, respondent concedes that Congress may elimi- nate habeas review of factual questions in cases like this one. See, e.g., Nishimura Ekiu v. United States, 142 U.S. 651, 660 (1892). He has thus disclaimed the “right to chal- lenge the historical facts” found by immigration officials during his credible-fear process. Tr. of Oral Arg. 44. But even though respondent has framed his two primary claims as asserting legal error, substance belies that label. Both claims are, at their core, challenges to factual findings. During his credible-fear interview, respondent said that he is an ethnic Tamil from Sri Lanka and that, one day, a group of men abducted him in a van and brutally beat him. App. 67, 70–74. The asylum officer believed respondent’s account, id., at 83, which respondent confirmed was his sole basis for seeking relief, id., at 77, 79. The critical question, then, concerned the nature of the attack: Who attacked re- spondent and why? In written findings, the asylum officer Cite as: 591 U. S. ____ (2020) 5 BREYER, J., concurring in judgment concluded that it was “unknown who these individuals were or why they wanted to harm [respondent].” Id., at 87. Based on those findings, the asylum officer determined that respondent had not established a credible fear of persecu- tion or torture within the meaning of governing law. See id., at 87, 89. Respondent, to be sure, casts the brunt of his challenge to this adverse credible-fear determination as two claims of legal error. But it is the factual findings underlying that determination that respondent, armed with strong new fac- tual evidence, now disputes. See id., at 23–27; Brief for Pro- fessors of Sri Lankan Politics as Amici Curiae 7–11; see also ante, at 36, n. 28 (noting that immigration officials may re- visit their findings in light of this additional evidence). Respondent first asserts that the asylum officer failed to apply—or at least misapplied—the applicable legal stand- ard under §1225(b)(1)(B)(v), which required only a “signifi- cant possibility” that respondent could establish entitle- ment to relief from removal. See App. 30–32; Brief for Respondent 6. Respondent also contends that the asylum officer “demonstrated a fatal lack of knowledge” about con- ditions in Sri Lanka, id., at 7, in violation of provisions re- quiring that asylum officers consider “other facts as are known to the officer,” §1225(b)(1)(B)(v), and have “had pro- fessional training in country conditions,” §1225(b)(1)(E)(i). See App. 24–26, 28–29, 31. At the heart of both purportedly legal contentions, how- ever, lies a disagreement with immigration officials’ find- ings about the two brute facts underlying their credible-fear determination—again, the identity of respondent’s attack- ers and their motive for attacking him. Other than his own testimony describing the attack, respondent has pointed to nothing in the administrative record to support either of these claims. As to his legal-standard claim, respondent does not cite anything affirmatively indicating that immigration officials 6 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM BREYER, J., concurring in judgment misidentified or misunderstood the proper legal standard under §1225(b)(1)(B)(v). Rather, he argues that their cred- ible-fear determination was so egregiously wrong that it simply must have rested on such a legal error. See Tr. of Oral Arg. 46–50. But that contention rests on a refusal to accept the facts as found by the immigration officials. Spe- cifically, it rejects their findings that no evidence suggested respondent was attacked by men affiliated with the Sri Lankan Government and motivated by respondent’s Tamil ethnicity or (as he now alleges) history of political activism. See App. 87; see also, e.g., id., at 23–26. Respondent’s quar- rel, at bottom, is not with whether settled historical facts satisfy a legal standard, see Guerrero-Lasprilla v. Barr, 589 U. S. ___, ___ (2020) (slip op., at 4), but with what the his- torical facts are. Respondent’s country-conditions claim is much the same. Respondent does not cite anything in the administrative record affirmatively indicating that, contrary to §§1225(b)(1)(B)(v) and (E)(i), immigration officials, for ex- ample, consciously disregarded facts presented or other- wise known to them, or that the asylum officer never re- ceived relevant professional training. Instead, respondent offers a similar refrain: The credible-fear determination was so egregiously wrong that immigration officials simply must not have known about conditions in Sri Lanka. See Brief for Respondent 7. So this claim, too, boils down to a factual argument that immigration officials should have known who respondents’ attackers were and why they at- tacked him. Mindful that the “Constitution deals with substance, not shadows,” Salazar v. Buono, 559 U.S. 700, 723 (2010) (ROBERTS, C. J., concurring) (internal quotation marks omitted), I accordingly view both claims as factual in na- ture, notwithstanding respondent’s contrary characteriza- tion. For that reason, Congress may foreclose habeas re- view of these claims without running afoul of the Cite as: 591 U. S. ____ (2020) 7 BREYER, J., concurring in judgment Suspension Clause. See, e.g., Nishimura Ekiu, 142 U.S., at 660. The other two claims of error that respondent has pressed assert that immigration officials violated procedures re- quired by law. He first contends that, by not asking addi- tional questions during the credible-fear interview, the asy- lum officer failed to elicit “all relevant and useful information,” in violation of 8 CFR §208.30(d) (2020). See App. 27, 31. Respondent further alleges that translation problems arose during the interview, in violation of the asy- lum officer’s duty under §§208.30(d)(1) and (2) to ensure that respondent was “[a]ble to participate effectively” and “ha[d] an understanding of the credible fear determination process.” See App. 27–28, 31. Though both claims may rea- sonably be understood as procedural, they may constitu- tionally be treated as unreviewable—at least under the bor- der-entry circumstances present in this case. See supra, at 3–4. Respondent’s procedural claims are unlike those that we reviewed in habeas proceedings during the finality era. Throughout that period, the procedural claims that we ad- dressed asserted errors that fundamentally undermined the efficacy of process prescribed by law. See Chin Yow, 208 U.S., at 11 (observing that a noncitizen could obtain habeas relief on procedural grounds if he was denied “an oppor- tunity to prove his right to enter the country, as the statute meant that he should have”). Many of our finality era cases thus dealt with situations in which immigration officials failed entirely to take obligatory procedural steps. In Waldman, for example, we faulted immigration offi- cials for making “no finding[s]” at all on potentially dispos- itive issues, including whether the noncitizens were fleeing religious persecution and therefore exempt from a literacy requirement. 266 U.S., at 120. And in United States ex rel. Johnson v. Shaughnessy, 336 U.S. 806 (1949), we re- versed for procedural error because the noncitizen was 8 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM BREYER, J., concurring in judgment denied outright “the independent [medical] review and re-examination” required by then-governing law. Id., at 812; see also Accardi, 347 U.S., at 267 (faulting the Attor- ney General for short-circuiting altogether legally pre- scribed adjudication procedures by “dictating” an immigra- tion decision himself ). Respondent’s procedural claims are different. He does not allege that immigration officials, say, denied him a credible-fear interview or skipped a layer of intra-agency review altogether. Nor do his allegations suggest that the asylum officer’s questioning or the interpreter’s translation constructively deprived him of the opportunity to establish a credible fear; indeed, he has consistently maintained that the information that was elicited more than sufficed. See, e.g., Tr. of Oral Arg. 46–48; cf. Chin Yow, 208 U.S., at 13 (observing that “the denial of a hearing cannot be estab- lished” merely “by proving that the decision was wrong”). Respondent thus contends that the credible-fear process was procedurally defective for reasons that are more tech- nical. He alleges that additional questions would have yielded further “relevant and useful” information and that “communication issues affected the interview” in some way. App. 27. Respondent’s procedural claims consequently concern not the outright denial (or constructive denial) of a process, but the precise way in which the relevant procedures were ad- ministered. They raise fine-grained questions of degree— i.e., whether the asylum officer made sufficiently thorough efforts to elicit all “relevant and useful information” and whether he took sufficiently thorough precautions to ensure that respondent was “[a]ble to participate effectively” in the interview. 8 CFR §208.30(d). Reviewing claims hinging on procedural details of this kind would go beyond the traditionally “limited role” that habeas has played in immigration cases similar to this one—even during the finality era. St. Cyr, 533 U.S., at 312. Cite as: 591 U. S. ____ (2020) 9 BREYER, J., concurring in judgment To interpret the Suspension Clause as insisting upon ha- beas review of these claims would require, by constitutional command, that the habeas court make indeterminate and highly record-intensive judgments on matters of degree. Respondent has not cited, and I have not found, any case of ours suggesting that the Suspension Clause demands pars- ing procedural compliance at so granular a level. Neither, apparently, has the Solicitor General. See Tr. of Oral Arg. 14–15, 23–24; Brief for Petitioners 38. Together with respondent’s status, see supra, at 3–4, these characteristics convince me that Congress had the constitutional power to foreclose habeas review of respond- ent’s procedural claims. Recasting those claims as an alle- gation that respondent’s “due process rights were violated by” immigration officials makes no material difference. App. 32. That alternative description changes none of the features that, in my view, put respondent’s procedural claims beyond the scope of any minimum habeas review that the Suspension Clause might assure him under the cir- cumstances. * * * For these reasons, I would hold that, as applied to re- spondent, §1252(e)(2)’s limits on habeas review do not vio- late the Suspension Clause. I would go no further. Cite as: 591 U. S. ____ (2020) 1 SOTOMAYOR, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ No. 19–161 _________________ DEPARTMENT OF HOMELAND SECURITY, ET AL., PETITIONERS v.

I join the Court’s opinion, which correctly concludes that respondent’s Suspension Clause argument fails because he does not seek a writ of habeas corpus. I write separately to address the original meaning of the Suspension Clause, which guarantees that “[t]he Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Re- bellion or Invasion the public Safety may require it.” Art. I, cl. 2. The Founders appear to have understood “[t]he Privilege of the Writ of Habeas Corpus” to guarantee free- dom from discretionary detention, and a “suspen[sion]” of that privilege likely meant a statute granting the executive the power to detain without bail or trial based on mere sus- picion of a crime or dangerousness. Thus, the expedited re- moval procedure in the Illegal Immigration Reform and Im- migrant Responsibility Act of 1996, –546, is likely not a suspension.1 I The writ of habeas corpus began as a prerogative writ in the Court of King’s Bench in the 16th century. J. Baker, An Introduction to English Legal History 157 (5th ed. 2019). —————— 1 I express no view on the question whether respondent is even entitled to the privilege of the writ as an unadmitted alien. 2 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM THOMAS, J., concurring Over time, however, it came to be understood both as a right to be free from arbitrary detention and as a procedural writ. By the end of the 16th century, the English connected the common-law writ of habeas corpus to liberty. Specifically, it was associated with the guarantee in Magna Carta that “[n]o free person (Nullus liber homo) shall be taken or im- prisoned, or disseised or outlawed or exiled, or in any way destroyed except by the lawful judgment of his peers or by the law of the land.” Perhaps most prominently, Edward Coke wrote in his Institutes that “if a man be taken, or committed to prison contra legem terrae, against the Law of the land,” then “[h]e may have an habeas corpus.” The Second Part of the Institutes of the Laws of England 55 (6th ed. 1681). For Coke, and for the many English (and later Americans) who read his work, “the writ was treated as an aspect of the Charter’s guar- anty.” D. Meador, Habeas Corpus and Magna Carta: Dual- ism of Power and Liberty 22 (1966). This association between habeas corpus and freedom from discretionary detention deepened after 1679 with the Habeas Corpus Act, also known as An Act for the better se- cureing the Liberty of the Subject and for Prevention of Im- prisonments beyond the Seas. The statute sought to ad- dress “great Delayes” in “criminall or supposed criminall Matters.” 31 Car. 2, ch. 2. It required an officer served with a writ of habeas corpus to produce the prisoner within three days in “any such criminall or supposed criminall Matters.” It also guaranteed bail to prisoners in cases of felony or high treason if they were not tried within one term of court. To protect these rights, Parliament created a special statutory remedy: All writs under the Habeas Cor- pus Act were marked as issuing pursuant to the statute. ; P. Halliday, Habeas Corpus: From England to Empire 320 Parliament passed the Habeas Corpus Act to curb the power of King Charles II, but it nonetheless came to be seen Cite as: 591 U. S. (0) 3 THOMAS, J., concurring as a protection for liberty, not just an assertion of the pow- ers of Parliament over the Crown. Henry Care, in the 17 edition of his widely read treatise English Liberties, com- mented that “before this statute [the common-law writ of habeas corpus] was rendered far less useful than it ought to be, partly by the Judges pretending a power to grant or deny the said writ at their pleasure, in many cases; and es- pecially by the ill practices of Sheriffs and Goalers, by put- ting the prisoner to the charge and trouble of a second and third writ, before they would obey the first.” 1 English Liberties, or the Free-born Subject’s Inheritance 195. The Habeas Corpus Act, he concluded, “provides thus for our lib- erty.” William Blackstone put it even more sweepingly, writing that the Habeas Corpus Act “is fre- quently considered as another magna carta.” 3 Commen- taries on the Laws of England 135 (1770). II The Founders inherited this understanding of habeas corpus. And they enshrined it in the Suspension Clause, which they understood to protect a substantive right. The language of the Suspension Clause evinces this un- derstanding. The Clause itself does not authorize courts to issue writs of habeas corpus. 337 (2001) (Scalia, J., dissenting); Ex parte Bollman, 4 Cranch 75, 94 (1807). Nor does it refer simply to the writ of habeas corpus. Rather, it protects the privilege of the writ of habeas corpus. The word “privilege” was “used in- terchangeably with the words ‘rights,’ ‘liberties,’ and ‘free- doms,’ and had been since the time of Blackstone.” McDon- (THOMAS, J., concurring in part and concurring in judgment). By using this term, the Framers appear to have had a substantive right in mind. Ratification debates reflect this understanding as well. Future Supreme Court Justice James Iredell said in the 4 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM THOMAS, J., concurring North Carolina convention that, “[b]y the privileges of the habeas corpus, no man can be confined without inquiry; and if it should appear that he has been committed contrary to law, he must be discharged.” 4 Debates in the Several State Conventions 171 (J. Elliot ed. 1891). Signer of the Consti- tution James McHenry told the Maryland House of Dele- gates that “[p]ublic safety may require a suspension of the Ha[beas] Corpus in cases of necessity: when those cases do not exist, the virtuous Citizen will ever be protected in his opposition to power.” 11 Documentary History of the Rati- fication of the Constitution 80, 84 (Documentary History). This understanding is echoed in statements that the Con- stitution protects the Habeas Corpus Act, the writ of habeas corpus, or simply “the habeas corpus,” all referring to a sub- stantive right. Alexander Hamilton wrote in The Federalist No. 83 that “the habeas corpus act” was “provided for in the most ample manner in the plan of the convention.” The Federalist No. 83, p. 499 (C. Rossiter ed. 1961). Again in No. 84, he wrote that the Constitution “establish[ed] the writ of habeas corpus.” No. 84, 11. In the Pennsyl- vania ratifying convention, Jasper Yeates said that the Sus- pension Clause “direct[ed] that the privilege of the habeas corpus act shall not be suspended except in times of imme- diate danger.” 2 Documentary History 434–435 (M. Jensen ed. 1976). In Virginia, Governor Edmund Randolph—a signer and future Attorney General—argued that “the ha- beas corpus is at least on as secure and good a footing as it is in England” because “[t]hat privilege is secured here by the Constitution.” 9 (J. Kaminski & G. Saladino eds. 1990). Luther Martin of Maryland wrote that “the gen- eral government is to have a power of suspending the ha- beas corpus act, in cases of rebellion or invasion.” Genuine Information VIII, reprinted in 15 (J. Kaminski & G. Saladino eds. 1984). In Massachusetts, Theophilius Par- sons “made a Loud Speech on the Habeas Corpus act that Cite as: 591 U. S. (0) 5 THOMAS, J., concurring it will not be in the power of Gov[ern]ment to suspend the act only in time of war.” 7 at 1 (J. Kaminski & G. Saladino eds. 2001). Other speakers and writers made sim- ilar references. See A. Tyler, Habeas Corpus in Wartime 132–133 (2017) (collecting examples). In sum, it seems that the founding generation viewed the privilege of the writ of habeas corpus as a freedom from arbitrary detention.2 III The remaining question is what it means for “[t]he Privi- lege of the Writ of Habeas Corpus” to “be suspended.” U. S. Const., Art. I, cl. 2. At the founding, suspension was a well-known term that meant “a [t]emporal [s]top of a [m]an’s [r]ight.” N. Bailey, An Universal Etymological Eng- lish Dictionary (22d ed. 1770); see St. – 338 (Scalia, J., dissenting). In the context of habeas corpus, —————— 2 None of this is to say that the writ of habeas corpus involved a wide- ranging, ever-changing inquiry. As the Court today reaffirms, “the scope of habeas has been tightly regulated by statute, from the Judiciary Act of 1789 to the present day.” Ante, at 21, n. 20. A writ of habeas corpus was “in the nature of a writ of error, to examine the legality of the com- mitment.” Ex parte Watkins, When an executive detained someone without trial, it allowed a court to “examine into [the] validity” of “the reason for” commitment. 3 W. Black- stone, Commentaries on the Laws of England 133 (1770). In cases of detention pursuant to the judgment of a court, “a prisoner seeking a writ of habeas corpus could challenge only the jurisdiction of the court that had rendered the judgment under which he was in custody.” Wright v. West, In both contexts, the writ “played only a procedural role: It issued as of right when a pris- oner showed probable cause to believe he was being held illegally and obligated the warden to file a ‘return’ identifying the grounds of impris- onment.” (THOMAS, J., dissenting). When the writ of habeas corpus was granted, it “decided nothing except that there was a case calling for an answer by the gaoler.” Goddard, A Note on Habeas Corpus, 65 L. Q. Rev. 30, 34 “After reviewing the reason so returned, the court could release, bail, or remand the prisoner as appropriate.” J. Baker, An Introduction to English Legal History 157 (5th ed. 2019). 6 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM THOMAS, J., concurring it appears to have specifically meant a grant of authority to the executive to detain without bail or trial based on suspi- cion of a crime or dangerousness. The English understood the term this way. Blackstone called it “the happiness of [the English] constitution” that “the parliament only, or legislative power, can authorize the crown, by suspending the habeas corpus act for a short and limited time, to imprison suspected persons without giving any reason for so doing.” 1 Commentaries on the Laws of England, at 136. Bills known as suspensions granted broad power to detain based on suspicion of a crime. For example, in 1777, Lord Germaine introduced a bill “ ‘to empower his Majesty to secure and detain Persons charged with, or suspected of, the Crime of High Treason committed in North America, or on the High Seas, or the Crime of Piracy.’ ” 19 W. Cobbett, The Parliamentary His- tory of England 4 (1814). The bill allowed certain prisoners to be detained “ ‘without bail or mainprize’ ”3 and prohibited any “ ‘judge or justice of peace’ ” from “ ‘bail[ing] or try[ing] any such person or persons, any law, statute, or usage, to the contrary in any wise notwithstanding.’ ” The text contained no mention of the Habeas Corpus Act, but it nevertheless was referred to as a “suspension of the Habeas Corpus Act.” at 9–10. As one historian has written, suspensions “were officially acts ‘empowering his majesty to apprehend and detain such persons as he shall find cause to suspect’ ” and to do so “ ‘without bail or mainprise.’ ” Halliday, Habeas Corpus, at 248. Americans shared a similar understanding, as evidenced by the suspensions that States passed during the Revolu- tionary War. “By their common terms,” these suspensions —————— 3 Mainprise or mainprize is a “writ ordering the sheriff to take se- curity for the prisoner’s appearance and release the prisoner.” Black’s Law Dictionary 1142 (11th ed. 2019). Cite as: 591 U. S. (0) 7 THOMAS, J., concurring “bestowed authority on state executives to arrest and de- tain persons preventively based on suspicion of supporting the Crown.” Tyler, Habeas Corpus in Wartime, at 111. In 1777, Massachusetts authorized the detention of “any per- son whom the council shall deem the safety of the Common- wealth requires should be restrained of his personal liberty, or whose enlargement within this state is dangerous thereto” “without bail or mainpri[s][z]e.” 1776–1777 Mass. Acts ch. 45, 3, p. 641. Virginia similarly allowed the Governor and council to detain anyone “whom they may have just cause to suspect of disaffection to the independ- ence of the United States or of attachment to their ene- mies.” An act for giving certain powers to the governour and council, and for punishing those who shall oppose the execution of laws, reprinted in 10 W. Hening’s Statutes at Large 413–414 (1822). And New York created a board with power “to apprehend and confine or cause to be appre- hended or confined all persons whose going at large shall in the judgment of the said commissioners or any three of them appear dangerous to the safety of this State.” An Act appointing commissioners for detecting and defeat- ing conspiracies and declaring their powers (Feb. 5, 1778), 1778 N. Y. Laws ch. 3, pp. 8–9; see also An Act for consti- tuting a Council of Safety (Oct. 11, 1777), 1777 N. J. Laws ch. 40, p. 85; An Act to Empower the Supreme Executive Council of this Commonwealth to Provide for the Security Thereof in Special Cases Where No Provision Is Already Made by Law (Sept. 6, 1777), ch. 762, 9 Statutes at Large of Pennsylvania 140 (J. Mitchell & H. Flanders eds. 1903); An Act to punish certain crimes and misdemeanors, and to prevent the growth of toryism, 1777 Md. Laws ch. 20, —————— 4 It does not appear that it was necessary to expressly mention the availability of the writ in a suspending Act. Some States made express reference to the writ of habeas corpus, see, e.g., ch. 762, 9 Statutes at Large of Pennsylvania 140, but many did not. 8 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM THOMAS, J., concurring Massachusetts continued using this formula for suspen- sions under its 1780 Constitution. These suspensions are especially probative because that Constitution contained language similar to the Federal Suspension Clause: “The privilege and benefit of the writ of habeas corpus shall be enjoyed in this Commonwealth in the most free, easy, cheap, expeditious and ample manner; and shall not be sus- pended by the Legislature, except upon the most urgent and pressing occasions, and for a limited time not exceeding twelve months.” Pt. 2, ch. VI, Art. VII. In response to Shays’ Rebellion, which gained notoriety across the United States, Massachusetts passed “An Act for Suspending the Privilege of the Writ of Habeas Corpus.” It provided that “the Governor, with the advice and consent of the Council, be and he hereby is authorised and empow- ered to command, and cause to be apprehended, and committed in any Goal, or other safe place, within the Commonwealth, any person or persons whatsoever, whom the Governor and Council, shall deem the safety of the Commonwealth requires should be restrained of their personal liberty, or whose enlargement is danger- ous thereto; any Law, Usage or Custom to the contrary notwithstanding.” 1786–1787 Mass. Acts ch. 41, p. 102. The Act also provided that “any Person who shall be appre- hended and imprisoned, as aforesaid, shall be continued in imprisonment, without Bail or Mainprize, until he shall be discharged therefrom by order of the Governor, or of the General Court.” ; see also An Act to Suspend the Privilege of the Writ of Habeas Corpus for Six Months (June 27, 1782), 1782–1783 Mass. Acts ch. 2, pp. 6–7. Thus, in a jurisdiction with an analog to the Suspension Clause, a sus- pension was a grant of power to detain without bail or trial based on suspicion of a crime or dangerousness. Cite as: 591 U. S. (0) 9 THOMAS, J., concurring Although the ratification debates are not especially illu- minating on the meaning of a suspension, they provide fur- ther support for this understanding. Luther Martin wrote that the Government, upon “suspending the habeas corpus act may seize upon the persons of those advocates of free- dom, who have had virtue and resolution enough to excite the opposition, and may imprison them during its pleas- ure.” Genuine Information VIII, reprinted in 15 Documen- tary History 434. Another essayist, writing in a Boston newspaper, explained that suspension would allow “the President, or President and Senate, as Congress shall think proper to empower, to take up and confine for any cause, or for any suspicion, or for no cause, perhaps any person, he or they shall think proper. 5 (J. Kaminski & G. Saladino eds. 1998). In sum, a suspension was not necessarily an express lim- itation on the availability of the writ of habeas corpus. Ra- ther, it appears to have been a grant of power to detain based on suspicion of a crime or dangerousness without bail or trial. IV Under this interpretation, 8 U.S. C. likely does not suspend the writ of habeas corpus. To be placed in expe- dited removal, an immigration officer must “determin[e]” that an alien is “inadmissible.” That de- termination is based in part on the alien’s lack of valid en- try documentation and failure to satisfy a 2-year continu- ous physical presence requirement, not on mere suspicion or dangerousness. (iii)(II); An alien has the opportunity to avoid expedited removal by demonstrating a “credible fear of persecution.” (v). If the alien is unsuccessful, he may seek “[j]udicial review in habeas corpus proceedings” of “whether [he] is an alien”; “whether [he] was ordered re- moved” under expedited removal; and “whether [he] can 10 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM THOMAS, J., concurring prove by a preponderance of the evidence that [he] is an al- ien lawfully admitted for permanent residence, has been admitted as a refugee or has been granted asylum” and “such status [has not] been terminated.” (e)(2). This statute bears little resemblance to a suspension as that term was understood at the founding. It does not allow the executive to detain based on mere suspicion of a crime or dangerousness. Rather, it requires a finding that the de- tainee lacks valid documentation and is not eligible for asy- lum. It even expressly permits habeas relief for a detainee who does not meet certain criteria for expedited removal. Some may wish that the Suspension Clause were broader. Perhaps for this reason, our precedents have de- parted from the original understanding of the Suspension Clause. See, e.g., 826– 850 (Scalia, J., dissenting); St. – 341 (Scalia, J., dissenting). But this understanding does contain an important guarantee of individual liberty by lim- iting the circumstances in which Congress may give the ex- ecutive power to detain without bail or trial based on suspi- cion of a crime or dangerousness. In this case, that guarantee has not been violated. Cite as: 591 U. S. (0) 1 BREYER, J., concurring in judgment SUPREME COURT OF THE UNITED STATES No. 19–161 DEPARTMENT OF HOMELAND SECURITY, ET AL., PETITIONERS v. VIJAYAKUMAR THURAISSIGIAM ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT [June 25, 0] JUSTICE BREYER, with whom JUSTICE GINSBURG joins, concurring in the judgment. The statute at issue here, 8 U.S. C. (e)(2), sets forth strict limits on what claims a noncitizen subject to expe- dited removal may present in federal habeas corpus pro- ceedings. I agree that enforcing those limits in this partic- ular case does not violate the Suspension Clause’s constitutional command: “The Privilege of the Writ of Ha- beas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.” U. S. Const., Art. I, cl. 2. But we need not, and should not, go further. We need not go further because the Government asked us to decide, and we agreed to review, an issue limited to the case before us. The question presented is “whether, as ap- plied to respondent, Section 1252(e)(2) is unconstitutional under the Suspension Clause.” Pet. for Cert. i (emphasis added). All we must decide is whether, under the Suspen- sion Clause, the statute at issue “is unconstitutional as ap- plied to this party, in the circumstances of this case.” Chi- (Scalia, J., dissenting). Nor should we go further. Addressing more broadly whether the Suspension Clause protects people challenging 2 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM BREYER, J., concurring in judgment removal decisions may raise a host of difficult questions in the immigration context. What review might the Suspen- sion Clause assure, say, a person apprehended years after she crossed our borders clandestinely and started a life in this country? Under current law, noncitizens who have lived in the United States for up to two years may be placed in expedited-removal proceedings, see but Congress might decide to raise that 2-year cap (or re- move it altogether). Does the Suspension Clause let Con- gress close the courthouse doors to a long-term permanent resident facing removal? In (2001), we avoided just that “serious and difficult constitu- tional issue.” Could Congress, for that matter, deny habeas review to someone ordered removed despite claiming to be a natural- born U. S. citizen? The petitioner in Chin and others have faced that pre- dicament. See also (e)(2)(A) (permitting, at present, habeas review of citizenship claims). What about foreclos- ing habeas review of a claim that rogue immigration offi- cials forged the record of a credible-fear interview that, in truth, never happened? Or that such officials denied a ref- ugee asylum based on the dead-wrong legal interpretation that Judaism does not qualify as a “religion” under govern- ing law? Cf. 119–120 (1924) (observing that immigration officials ignored a Jew- ish family’s claim that they were “refugees” fleeing “reli- gious persecution”). The answers to these and other “difficult questions about the scope of [Suspension Clause] protections” lurk behind the scenes here. Lozman v. Riviera Beach, 585 U. S. (2018) (slip op., at 10). I would therefore avoid making statements about the Suspension Clause that sweep beyond the principles needed to decide this case—let alone come to conclusions about the Due Process Clause, a distinct consti- Cite as: 591 U. S. (0) 3 BREYER, J., concurring in judgment tutional provision that is not directly at issue here. Com- pare (concluding that, with narrow grounds for deci- sion available, resolving broader, more difficult questions “must await a different case”) with ante, at 12–16 (suggest- ing that removal is simply not the sort of “restraint” for which the Suspension Clause guarantees a means of “secur- ing release”), and ante, at 34–36 (addressing a separate due process question). As for the resolution of the dispute before us, Congress, in my view, had the constitutional power to foreclose habeas review of the claims that respondent has pressed in this case. Habeas corpus, as we have said, is an “adaptable rem- edy,” and the “precise application and scope” of the review it guarantees may change “depending upon the circum- stances.” ; see also at So where the Suspension Clause applies, the “habeas court’s role” may prove more “extensive,” or less so, depending on the context at issue. Here, even assuming that the Suspension Clause guarantees respond- ent some form of habeas review—which is to say, even ac- cepting for argument’s sake that the relief respondent seeks is “release,” contra, ante, at 22—the scope of that constitu- tionally required review would not extend to his claims. Two features of this case persuade me. First, respondent’s status suggests that the constitu- tional floor set by the Suspension Clause here cannot be high. A Border Patrol agent apprehended respondent just 25 yards inside the border. Respondent was placed in ex- pedited removal proceedings shortly thereafter, where he received the same consideration for relief from removal that Congress has afforded persons arriving at the border. Re- spondent has never lived in, or been lawfully admitted to, the United States. To my mind, those are among the “circumstances” that 4 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM BREYER, J., concurring in judgment inform the “scope” of any habeas review that the Suspen- sion Clause might guarantee respondent. Boumediene, 553 U.S., at He is thus in a materially different position for Suspension Clause purposes than the noncitizens in, for example, United States ex rel. and They had all lived in this country for years. The scope of whatever habeas review the Suspension Clause assures respondent need not be as extensive as it might for someone in that position. Second, our precedents demonstrate that respondent’s claims are of the kind that Congress may, consistent with the Suspension Clause, make unreviewable in habeas pro- ceedings. Even accepting respondent’s argument that our “finality era” cases map out a constitutional minimum, see ante, at 23–24, his claims, on the facts presented here, differ significantly from those that we reviewed throughout this period. To begin, respondent concedes that Congress may elimi- nate habeas review of factual questions in cases like this one. See, e.g., Nishimura Ekiu v. United States, 142 U.S. 651, 660 (1892). He has thus disclaimed the “right to chal- lenge the historical facts” found by immigration officials during his credible-fear process. Tr. of Oral Arg. 44. But even though respondent has framed his two primary claims as asserting legal error, substance belies that label. Both claims are, at their core, challenges to factual findings. During his credible-fear interview, respondent said that he is an ethnic Tamil from Sri Lanka and that, one day, a group of men abducted him in a van and brutally beat him. App. 67, 70–. The asylum officer believed respondent’s account, which respondent confirmed was his sole basis for seeking relief, The critical question, then, concerned the nature of the attack: Who attacked re- spondent and why? In written findings, the asylum officer Cite as: 591 U. S. (0) 5 BREYER, J., concurring in judgment concluded that it was “unknown who these individuals were or why they wanted to harm [respondent].” Based on those findings, the asylum officer determined that respondent had not established a credible fear of persecu- tion or torture within the meaning of governing law. See 89. Respondent, to be sure, casts the brunt of his challenge to this adverse credible-fear determination as two claims of legal error. But it is the factual findings underlying that determination that respondent, armed with strong new fac- tual evidence, now disputes. See at 23–27; Brief for Pro- fessors of Sri Lankan Politics as Amici Curiae 7–11; see also ante, at 36, n. 28 (noting that immigration officials may re- visit their findings in light of this additional evidence). Respondent first asserts that the asylum officer failed to apply—or at least misapplied—the applicable legal stand- ard under which required only a “signifi- cant possibility” that respondent could establish entitle- ment to relief from removal. See App. 30–32; Brief for Respondent 6. Respondent also contends that the asylum officer “demonstrated a fatal lack of knowledge” about con- ditions in Sri Lanka, in violation of provisions re- quiring that asylum officers consider “other facts as are known to the officer,” and have “had pro- fessional training in country conditions,” See App. 24–26, 28–29, 31. At the heart of both purportedly legal contentions, how- ever, lies a disagreement with immigration officials’ find- ings about the two brute facts underlying their credible-fear determination—again, the identity of respondent’s attack- ers and their motive for attacking him. Other than his own testimony describing the attack, respondent has pointed to nothing in the administrative record to support either of these claims. As to his legal-standard claim, respondent does not cite anything affirmatively indicating that immigration officials 6 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM BREYER, J., concurring in judgment misidentified or misunderstood the proper legal standard under Rather, he argues that their cred- ible-fear determination was so egregiously wrong that it simply must have rested on such a legal error. See Tr. of Oral Arg. 46–50. But that contention rests on a refusal to accept the facts as found by the immigration officials. Spe- cifically, it rejects their findings that no evidence suggested respondent was attacked by men affiliated with the Sri Lankan Government and motivated by respondent’s Tamil ethnicity or (as he now alleges) history of political activism. See App. 87; see also, e.g., at 23–26. Respondent’s quar- rel, at bottom, is not with whether settled historical facts satisfy a legal standard, see Guerrero-Lasprilla v. Barr, 589 U. S. (0) (slip op., at 4), but with what the his- torical facts are. Respondent’s country-conditions claim is much the same. Respondent does not cite anything in the administrative record affirmatively indicating that, contrary to and (E)(i), immigration officials, for ex- ample, consciously disregarded facts presented or other- wise known to them, or that the asylum officer never re- ceived relevant professional training. Instead, respondent offers a similar refrain: The credible-fear determination was so egregiously wrong that immigration officials simply must not have known about conditions in Sri Lanka. See Brief for Respondent 7. So this claim, too, boils down to a factual argument that immigration officials should have known who respondents’ attackers were and why they at- tacked him. Mindful that the “Constitution deals with substance, not shadows,” (ROBERTS, C. J., concurring) (internal quotation marks omitted), I accordingly view both claims as factual in na- ture, notwithstanding respondent’s contrary characteriza- tion. For that reason, Congress may foreclose habeas re- view of these claims without running afoul of the Cite as: 591 U. S. (0) 7 BREYER, J., concurring in judgment Suspension Clause. See, e.g., Nishimura Ekiu, 142 U.S., at 660. The other two claims of error that respondent has pressed assert that immigration officials violated procedures re- quired by law. He first contends that, by not asking addi- tional questions during the credible-fear interview, the asy- lum officer failed to elicit “all relevant and useful information,” in violation of (d) (0). See App. 27, 31. Respondent further alleges that translation problems arose during the interview, in violation of the asy- lum officer’s duty under and (2) to ensure that respondent was “[a]ble to participate effectively” and “ha[d] an understanding of the credible fear determination process.” See App. 27–28, 31. Though both claims may rea- sonably be understood as procedural, they may constitu- tionally be treated as unreviewable—at least under the bor- der-entry circumstances present in this case. See at 3–4. Respondent’s procedural claims are unlike those that we reviewed in habeas proceedings during the finality era. Throughout that period, the procedural claims that we ad- dressed asserted errors that fundamentally undermined the efficacy of process prescribed by law. See Chin 208 U.S., at 11 (observing that a noncitizen could obtain habeas relief on procedural grounds if he was denied “an oppor- tunity to prove his right to enter the country, as the statute meant that he should have”). Many of our finality era cases thus dealt with situations in which immigration officials failed entirely to take obligatory procedural steps. In Waldman, for example, we faulted immigration offi- cials for making “no finding[s]” at all on potentially dispos- itive issues, including whether the noncitizens were fleeing religious persecution and therefore exempt from a literacy And in United States ex rel. we re- versed for procedural error because the noncitizen was 8 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM BREYER, J., concurring in judgment denied outright “the independent [medical] review and re-examination” required by then-governing law. at 812; see also (faulting the Attor- ney General for short-circuiting altogether legally pre- scribed adjudication procedures by “dictating” an immigra- tion decision himself ). Respondent’s procedural claims are different. He does not allege that immigration officials, say, denied him a credible-fear interview or skipped a layer of intra-agency review altogether. Nor do his allegations suggest that the asylum officer’s questioning or the interpreter’s translation constructively deprived him of the opportunity to establish a credible fear; indeed, he has consistently maintained that the information that was elicited more than sufficed. See, e.g., Tr. of Oral Arg. 46–48; cf. Chin (observing that “the denial of a hearing cannot be estab- lished” merely “by proving that the decision was wrong”). Respondent thus contends that the credible-fear process was procedurally defective for reasons that are more tech- nical. He alleges that additional questions would have yielded further “relevant and useful” information and that “communication issues affected the interview” in some way. App. 27. Respondent’s procedural claims consequently concern not the outright denial (or constructive denial) of a process, but the precise way in which the relevant procedures were ad- ministered. They raise fine-grained questions of degree— i.e., whether the asylum officer made sufficiently thorough efforts to elicit all “relevant and useful information” and whether he took sufficiently thorough precautions to ensure that respondent was “[a]ble to participate effectively” in the interview. (d). Reviewing claims hinging on procedural details of this kind would go beyond the traditionally “limited role” that habeas has played in immigration cases similar to this one—even during the finality era. St. Cite as: 591 U. S. (0) 9 BREYER, J., concurring in judgment To interpret the Suspension Clause as insisting upon ha- beas review of these claims would require, by constitutional command, that the habeas court make indeterminate and highly record-intensive judgments on matters of degree. Respondent has not cited, and I have not found, any case of ours suggesting that the Suspension Clause demands pars- ing procedural compliance at so granular a level. Neither, apparently, has the Solicitor General. See Tr. of Oral Arg. 14–15, 23–24; Brief for Petitioners 38. Together with respondent’s status, see at 3–4, these characteristics convince me that Congress had the constitutional power to foreclose habeas review of respond- ent’s procedural claims. Recasting those claims as an alle- gation that respondent’s “due process rights were violated by” immigration officials makes no material difference. App. 32. That alternative description changes none of the features that, in my view, put respondent’s procedural claims beyond the scope of any minimum habeas review that the Suspension Clause might assure him under the cir- cumstances. * * * For these reasons, I would hold that, as applied to re- spondent, (e)(2)’s limits on habeas review do not vio- late the Suspension Clause. I would go no further. Cite as: 591 U. S. (0) 1 SOTOMAYOR, J., dissenting SUPREME COURT OF THE UNITED STATES No. 19–161 DEPARTMENT OF HOMELAND SECURITY, ET AL., PETITIONERS v.

Justice Sotomayor

dissenting

Department of Homeland Security v. Thuraissigiam

2020-06-25

https://www.courtlistener.com/opinion/4763596/department-of-homeland-security-v-thuraissigiam/

https://www.courtlistener.com/api/rest/v3/clusters/4763596/

The majority declares that the Executive Branch’s denial of asylum claims in expedited removal proceedings shall be functionally unreviewable through the writ of habeas cor- pus, no matter whether the denial is arbitrary or irrational or contrary to governing law. That determination flouts over a century of this Court’s practice. In case after case, we have heard claims indistinguishable from those re- spondent raises here, which fall within the heartland of ha- beas jurisdiction going directly to the origins of the Great Writ. The Court thus purges an entire class of legal challenges to executive detention from habeas review, circumscribing that foundational and “stable bulwark of our liberties,” 1 W. Blackstone, Commentaries 99 (Am. ed. 1832). By self-im- posing this limitation on habeas relief in the absence of a congressional suspension, the Court abdicates its constitu- tional duty and rejects precedent extending to the founda- tions of our common law. Making matters worse, the Court holds that the Consti- tution’s due process protections do not extend to noncitizens like respondent, who challenge the procedures used to de- termine whether they may seek shelter in this country or 2 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM SOTOMAYOR, J., dissenting whether they may be cast to an unknown fate. The decision deprives them of any means to ensure the integrity of an expedited removal order, an order which, the Court has just held, is not subject to any meaningful judicial oversight as to its substance. In doing so, the Court upends settled con- stitutional law and paves the way toward transforming al- ready summary expedited removal proceedings into arbi- trary administrative adjudications. Today’s decision handcuffs the Judiciary’s ability to per- form its constitutional duty to safeguard individual liberty and dismantles a critical component of the separation of powers. It will leave significant exercises of executive dis- cretion unchecked in the very circumstance where the writ’s protections “have been strongest.” INS v. St. Cyr, 533 U.S. 289, 301 (2001). And it increases the risk of erroneous immigration decisions that contravene governing statutes and treaties. The Court appears to justify its decision by adverting to the burdens of affording robust judicial review of asylum decisions. But our constitutional protections should not hinge on the vicissitudes of the political climate or bend to accommodate burdens on the Judiciary. I respectfully dis- sent. I The as-applied challenge here largely turns on how the Court construes respondent’s requests for relief. Its de- scriptions, as well as those of one of the concurrences, skew the essence of these claims. A proper reframing thus is in order. A Respondent first advances a straightforward legal ques- tion that courts have heard in habeas corpus proceedings in “case after case.” Id., at 306. His habeas petition claimed that an asylum officer and Immigration Judge “appl[ied] an Cite as: 591 U. S. ____ (2020) 3 SOTOMAYOR, J., dissenting incorrect legal standard” by ordering him removed despite a showing of a significant possibility of credible fear to es- tablish “eligibility for asylum, withholding of removal, and [Convention Against Torture] claims.” App. 31–32; see also 8 U.S. C. §1225(b)(1)(B)(v) (setting standard for credible fear as “a significant possibility, taking into account the . . . statements made by the alien . . . and such other facts as are known to the officer, that the alien could establish eli- gibility for asylum”). The Government itself has character- ized that claim as a challenge to the “ ‘application of a legal standard to factual determinations . . . underlying the Ex- ecutive’s negative credible-fear findings.’ ” 917 F.3d 1097, 1117, n. 20 (CA9 2019) (case below). At bottom, respondent alleged that he was unlawfully denied admission under gov- erning asylum statutes and regulations. The Court disagrees, flattening respondent’s claim into a mere plea “ultimately to obtain authorization to stay in this country.” Ante, at 2; see also ante, at 12 (describing the re- quest as a “right to enter or remain in a country”); ante, at 13, n. 14 (framing relief sought as “gaining a right to remain in this country”); ante, at 16 (equating relief with “authori- zation . . . to remain in a country other than his own”). Yet while the Court repeatedly says that respondent seeks nothing more than admission as a matter of grace, its own descriptions of respondent’s habeas petition belie its asser- tions. See, e.g., ante, at 5, n. 5 (“[T]he gravamen of his pe- tition is that [respondent] faces persecution in Sri Lanka ‘because of ’ his Tamil ethnicity and political opinions”); ibid. (suggesting that the same persecution inquiry governs respondent’s Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment claim); ante, at 36, n. 28 (observing that respondent’s habeas peti- tion contains factual allegations that resemble documented persecution on the basis of ethnicity or political opinion). Though the Court refuses to admit as much, its descriptions of respondent’s arguments illustrate, at bottom, claims that 4 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM SOTOMAYOR, J., dissenting immigration officials legally erred in their review of his asy- lum application. In papering over the true nature of respondent’s claims, the Court transforms his assertions of legal error in the ex- ercise of executive discretion into a naked demand for exec- utive action. But the distinction between those forms of re- lief makes all the difference. The law has long permitted habeas petitioners to challenge the legality of the exercise of executive power, even if the executive action ultimately sought is discretionary. See St. Cyr, 533 U.S., at 307 (citing cases). That principle has even more force today, where an entire scheme of statutes and regulations cabins the Exec- utive’s discretion in evaluating asylum applications. For that reason, the Court’s observation that the ultimate “grant of asylum is discretionary” is beside the point. Ante, at 5, n. 4. For its part, one concurring opinion seems to acknowledge that claims that assert something other than pure factual error may constitutionally require some judi- cial review. Ante, at 3–5 (BREYER, J., concurring in judg- ment). It simply determines that respondent’s credible-fear claims amount to nothing more than a “disagreement with immigration officials’ findings about the two brute facts un- derlying their credible-fear determination,” namely, the identity of his attackers and their motivations. Ante, at 5. It also faults respondent for failing to develop his claims of legal error with citations “indicating that immigration offi- cials misidentified or misunderstood the proper legal stand- ard” or that they “disregarded” or were not properly trained in identifying relevant country conditions. Ante, at 5–6. But the essence of respondent’s petition is that the facts as presented (that he, a Tamil minority in Sri Lanka, was abducted by unidentified men in a van and severely beaten), when considered in light of known country condi- tions (as required by statute), amount at least to a “signifi- cant possibility” that he could show a well-founded fear of Cite as: 591 U. S. ____ (2020) 5 SOTOMAYOR, J., dissenting persecution. So viewed, respondent’s challenge does not quibble with historic facts, but rather claims that those “settled facts satisfy a legal standard,” which this Court has held amounts to a “legal inquiry.” Guerrero-Lasprilla v. Barr, 589 U. S. ___, ___ (2020) (slip op., at 4). The concur- ring opinion suggests that any conclusions drawn from the discrete settled facts here could not be “so egregiously wrong” as to amount to legal error. Ante, at 6. But the ul- timate inquiry is simply whether the facts presented satisfy a statutory standard. While this concurring opinion may believe that the facts presented here do not show that re- spondent is entitled to relief, its view of the merits does not alter the legal nature of respondent’s challenge. B Second, respondent contended that the inadequate proce- dures afforded to him in his removal proceedings violated constitutional due process. Among other things, he as- serted that the removal proceedings by design did not pro- vide him a meaningful opportunity to establish his claims, that the translator and asylum officer misunderstood him, and that he was not given a “reasoned explanation” for the decision. App. 27, 32; see also id., at 32 (arguing that “[u]nder constitutionally adequate procedures, [respond- ent] would have prevailed on his claims”). Again, however, the Court falls short of capturing the procedural relief ac- tually requested. The Court vaguely suggests that respond- ent merely wanted more cracks at obtaining review of his asylum claims, not that he wanted to challenge the existing expedited removal framework or the process actually ren- dered in his case as constitutionally inadequate. See ante, at 2 (characterizing respondent as asking for “additional administrative review of his asylum claim”); see also ante, at 5, n. 5 (describing petition as seeking “another oppor- tunity to apply for asylum”). That misconstrues respond- 6 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM SOTOMAYOR, J., dissenting ent’s procedural challenges to the expedited removal pro- ceedings, which matters crucially; a constitutional chal- lenge to executive detention is just the sort of claim the com- mon law has long recognized as cognizable in habeas. See generally Part II, infra. One concurring opinion, meanwhile, properly character- izes respondent’s claims on this score as “procedural” chal- lenges. Ante, at 7 (opinion of BREYER, J.). Yet it concludes that those claims are not reviewable because they do not allege sufficiently serious defects. See ante, at 7–8 (describ- ing cognizable claims as those involving “ ‘no [factual] find- ing[s],’ ” contentions that officials “skipped a layer of intra- agency review altogether,” the “outright denial (or construc- tive denial) of a process,” or an official’s “fail[ure] entirely to take obligatory procedural steps”). But these are simply distinctions of degree, not of kind. Respondent claimed that officials violated governing asylum regulations and de- prived him of due process by conducting an inadequate in- terview and providing incomplete translation services. It is difficult to see the difference between those claims and the ones that the concurring opinion upholds as cognizable. Cf. ante, at 7–8 (finding cognizable claims that an official “short-circuit[ed] altogether legally prescribed adjudication procedures by ‘dictating’ an immigration decision” and that an official deprived a noncitizen of “ ‘an opportunity to prove his right to enter the country, as the statute meant that he should have’ ”). Indeed, the concurring opinion notes that the core ques- tion is whether a defect “fundamentally undermined the ef- ficacy of process prescribed by law.” Ante, at 7. Respond- ent’s petition plainly posits procedural defects that violate, or at least call into question, the “efficacy of process pre- scribed by law” and the Constitution. Ibid. The concurring opinion might think that respondent is not entitled to addi- tional protections as a matter of law or that the facts do not show he was denied any required process. But conclusions Cite as: 591 U. S. ____ (2020) 7 SOTOMAYOR, J., dissenting about the merits of respondent’s procedural challenges should not foreclose his ability to bring them in the first place. C Finally, the Court asserts that respondent did not specif- ically seek “release” from custody in what the Court styles as the “traditional” sense of the term as understood in ha- beas jurisprudence. Ante, at 10, 13; cf. ante, at 14 (suggest- ing that respondent “does not claim an entitlement to re- lease”). Instead, the Court seems to argue that respondent seeks only a peculiar form of release: admission into the United States or additional asylum procedures that would allow for admission into the United States. Such a request, the Court implies, is more akin to mandamus and injunc- tive relief. Ante, at 13. But it is the Court’s directionality requirement that bucks tradition. Respondent asks merely to be freed from wrongful executive custody. He asserts that he has a cred- ible fear of persecution, and asylum statutes authorize him to remain in the country if he does. That request is indis- tinguishable from, and no less “traditional” than, those long made by noncitizens challenging restraints that prevented them from otherwise entering or remaining in a country not their own. See Part II–B–1, infra. The Court has also never described “release” as the sole remedy of the Great Writ. Nevertheless, respondent’s peti- tion is not limited in the way the Court claims. As it acknowledges, ante, at 10, respondent directly asked the District Court to “[i]ssue a writ of habeas corpus” without further limitation on the kind of relief that might entail, App. 33. Respondent also sought “an [o]rder directing [the Government] to show cause why the writ should not be granted” and an order “directing [the Government] to va- cate the expedited removal order entered against [him].” Ibid. As the petition’s plain language indicates, respondent 8 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM SOTOMAYOR, J., dissenting raised a garden-variety plea for habeas relief in whatever form available and appropriate, including, but not limited to, release. * * * Fairly characterized, respondent’s claims allege legal er- ror (for violations of governing asylum law and for viola- tions of procedural due process) and an open-ended request for habeas relief. It is “uncontroversial” that the writ en- compasses such claims. See Boumediene v. Bush, 553 U.S. 723, 779 (2008) (concluding that release is but one form of relief available); see also St. Cyr., 533 U.S., at 302, 304– 308 (citing cases predating the founding to show that the writ could challenge “the erroneous application or interpre- tation” of relevant law); see also Part II–D, infra. II Only by recasting respondent’s claims and precedents does the Court reach its decision on the merits. By its ac- count, none of our governing cases, recent or centuries old, recognize that the Suspension Clause guards a habeas right to the type of release that respondent allegedly seeks.1 —————— 1 The Court wisely declines to explore whether the Suspension Clause independently guarantees the availability of the writ or simply restricts the temporary withholding of its operation, a point of disagreement be- tween the majority and dissent in INS v. St. Cyr, 533 U.S. 289 (2001). Ante, at 11, n. 12. Justice Scalia, dissenting in St. Cyr, wrote that the Suspension Clause “does not guarantee any content to (or even the exist- ence of ) the writ of habeas corpus, but merely provides that the writ shall not (except in case of rebellion or invasion) be suspended.” 533 U.S., at 337. But no majority of this Court, at any time, has adopted that theory. Notably, moreover, even Justice Scalia appears to have abandoned his position just three years later in Hamdi v. Rumsfeld, 542 U.S. 507, 555– 556 (2004) (dissenting opinion) (“The two ideas central to Blackstone’s understanding—due process as the right secured, and habeas corpus as the instrument by which due process could be insisted upon by a citizen illegally imprisoned—found expression in the Constitution’s Due Process and Suspension Clauses”); see also id., at 558 (“The writ of habeas corpus Cite as: 591 U. S. ____ (2020) 9 SOTOMAYOR, J., dissenting Ante, at 13, n. 14 (finding no evidence that the writ was un- derstood in 1789 to grant relief that would amount to “gain- ing a right to remain in this country”); ante, at 13 (charac- terizing a “ ‘meaningful opportunity’ ” for review of asylum claims as falling outside of traditional notions of release from custody). An overview of cases starting from the colo- nial period to the present reveals that the Court is incor- rect, even accepting its improper framing of respondent’s claims. A The critical inquiry, the Court contends, is whether re- spondent’s specific requests for relief (namely, admission into the United States or additional asylum procedures al- lowing for admission into the United States) fall within the scope of the kind of release afforded by the writ as it existed in 1789. Ante, at 11, 12; see also ante, at 10 (criticizing the court below for holding §1252(e)(2) unconstitutional “with- out citing any pre-1789 case about the scope of the writ”). This scope, it explains, is what the Suspension Clause pro- tects “at a minimum.” Ante, at 11. But as the Court implic- itly acknowledges, its inquiry is impossible. The inquiry also runs headlong into precedent, which has never de- manded the kind of precise factual match with pre-1789 case law that today’s Court demands. To start, the Court recognizes the pitfalls of relying on pre-1789 cases to establish principles relevant to immigra- tion and asylum: “At the time, England had nothing like modern immigration restrictions.” Ante, at 18–19 (“As late as 1816, the word ‘deportation’ apparently ‘was not to be found in any English dictionary’ ”). It notes, too, that our —————— was preserved in the Constitution—the only common-law writ to be ex- plicitly mentioned”). Even one concurring opinion seems to recognize that the Suspension Clause “protect[s] a substantive right.” Ante, at 3– 4 (opinion of THOMAS, J.). 10 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM SOTOMAYOR, J., dissenting cases have repeatedly observed the relative novelty of im- migration laws in the early days of this country. Ante, at 20 (citing Harisiades v. Shaughnessy, 342 U.S. 580, 588, n. 15 (1952) (“An open door to the immigrant was the early federal policy”); St. Cyr, 533 U.S., at 305 (remarking that the first immigration regulation was enacted in 1875)); see also Demore v. Kim, 538 U.S. 510, 539 (2003) (O’Connor, J., concurring in part and concurring in judgment) (“Because colonial America imposed few restrictions on immigration, there is little case law prior to that time about the availa- bility of habeas review to challenge temporary detention pending exclusion or deportation”). The Court nevertheless seems to require respondent to engage in an exercise in futility. It demands that respond- ent unearth cases predating comprehensive federal immi- gration regulation showing that noncitizens obtained re- lease from federal custody onto national soil. But no federal statutes at that time spoke to the permissibility of their en- try in the first instance; the United States lacked a compre- hensive asylum regime until the latter half of the 20th cen- tury. Despite the limitations inherent in this exercise, the Court appears to insist on a wealth of cases mirroring the precise relief requested at a granular level; nothing short of that, in the Court’s view, would demonstrate that a noncit- izen in respondent’s position is entitled to the writ. See ante, at 18, n. 18 (dismissing respondent’s cited cases on the ground that “[w]hether the founding generation understood habeas relief more broadly than described by Blackstone, Justice Story, and our prior cases . . . cannot be settled by a single case or even a few obscure and possibly aberrant cases”); see also Neuman, Habeas Corpus, Executive Deten- tion, and the Removal of Aliens, 98 Colum. L. Rev. 961 (1998) (noting the inherent difficulties of a strict originalist approach in the habeas context because of, among other things, the dearth of reasoned habeas decisions at the founding). Cite as: 591 U. S. ____ (2020) 11 SOTOMAYOR, J., dissenting But this Court has never rigidly demanded a one-to-one match between a habeas petition and a common-law habeas analog. In St. Cyr, for example, the Court considered whether a noncitizen with a controlled substance conviction could challenge on habeas the denial of a discretionary waiver of his deportation order. 533 U.S., at 293. In doing so, the Court did not search high and low for founding-era parallels to waivers of deportation for criminal noncitizens. It simply asked, at a far more general level, whether habeas jurisdiction was historically “invoked on behalf of nonciti- zens . . . in the immigration context” to “challenge Execu- tive . . . detention in civil cases.” Id., at 302, 305. That in- cluded determining whether “[h]abeas courts . . . answered questions of law that arose in the context of discretionary relief ” (including questions regarding the allegedly “erro- neous application or interpretation of statutes”). Id., at 302, and n. 18, 307. Boumediene is even clearer that the Suspension Clause inquiry does not require a close (much less precise) factual match with historical habeas precedent. There, the Court concluded that the writ applied to noncitizen detainees held in Guantanamo, 553 U.S., at 771, despite frankly admit- ting that a “[d]iligent search by all parties reveal[ed] no cer- tain conclusions” about the relevant scope of the common- law writ in 1789, id., at 746. Indeed, the Court reasoned that none of the cited cases illustrated whether a “common- law court would or would not have granted . . . a petition for a writ of habeas corpus” like that brought by the noncitizen- detainee petitioners, and candidly acknowledged that “the common-law courts simply may not have confronted cases with close parallels.” Id., at 746, 752. But crucially, the Court declined to “infer too much, one way or the other, from the lack of historical evidence on point.” Id., at 752. Instead, it sought to find comparable common-law habeas cases by “analogy.” Id., at 748–752. There is no squaring the Court’s methodology today with 12 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM SOTOMAYOR, J., dissenting St. Cyr or Boumediene. As those cases show, requiring near-complete equivalence between common-law habeas cases and respondent’s habeas claim is out of step with this Court’s longstanding approach in immigration cases. B 1 Applying the correct (and commonsense) approach to de- fining the Great Writ’s historic scope reveals that respond- ent’s claims have long been recognized in habeas. Respondent cites Somerset v. Stewart, Lofft. 1, 98 Eng. Rep. 499 (K. B. 1772), as an example on point. There, Lord Mansfield issued a writ ordering release of a slave bound for Jamaica, holding that there was no basis in English law for “sending . . . him over” to another country. Id., at 17– 19, 98 Eng. Rep., at 509–510. Thus, the writ issued even though it “did not free [the] slave so much as it protected him from deportation.” P. Halliday, Habeas Corpus: From England to Empire 175 (2010). Somerset establishes the longstanding availability of the writ to challenge the legal- ity of removal and to secure release into a country in which a petitioner sought shelter. Scholarly discussions of Mur- ray’s Case suggest much of the same. There, the King’s Bench granted habeas to allow a nonnative to remain in England and to prevent his removal to Scotland for trial. Halliday, Habeas Corpus, at 236. The Court dismisses these examples outright. It acknowledges that the petitioner in Somerset may have been allowed to remain in England because of his release on habeas, yet declares that this was “due not to the wri[t] ordering [his] release” but rather to the existing state of the law. Ante, at 20. But the writ clearly did more than permit the petitioner to disembark from a vessel; it prevented him from being “sen[t] . . . over” to Jamaica. Lofft., at 17, 98 Eng. Rep., at 509. What England’s immigration laws might have prescribed after the writ’s issuance did not bear on the Cite as: 591 U. S. ____ (2020) 13 SOTOMAYOR, J., dissenting availability of the writ as a means to remain in the country in the first instance. The Court also casts aside the facts of Murray’s Case, even though they, too, reveal that habeas was used to per- mit a nonnative detainee to remain in a country. Ante, at 18, n. 18. The Court minimizes the decision as “obscure and possibly aberrant.” Ibid. But given the relative paucity of habeas cases from this era, it is telling that the case serves as another example of the writ being used to allow a noncit- izen to remain in England.2 The reasoning of Somerset and Murray’s Case carried over to the Colonies, where colonial governments presumed habeas available to noncitizens to secure their residence in a territory. See generally Oldham & Wishnie, The Histori- cal Scope of Habeas Corpus and INS v. St. Cyr, 16 Geo. Im- migration L. J. 485 (2002). For example, in 1755, British authorities sought to deport French Acadian settlers from Nova Scotia, then under the control of Great Britain, to the American Colonies. Id., at 497. The Governor and Assem- bly of South Carolina resisted the migrants’ arrival and de- tained them in ships off the coast of Charleston. They rec- ognized, however, that the exclusion could not persist because the migrants would be entitled to avail themselves of habeas corpus. Id., at 498. Ultimately, the Governor re- leased most of the Acadian migrants for resettlement throughout the Colony. Ibid. Founding era courts accepted this view of the writ’s scope. Rather than credit these decisions, the Court marches —————— 2 The Court notes “the ‘delicate’ relationship between England and Scotland at the time” of Murray’s Case. Ante, at 18, n. 18. Interestingly, the Court does not mention the delicate nature of the relationship be- tween the United States and Iraq in Munaf v. Geren, 553 U.S. 674 (2008), the centerpiece of the Court’s argument, even though that case arose during a military conflict. Ante, at 14–15. Nor does it acknowledge the impact that the relationship had on the Munaf Court’s decision to refrain from issuing the writ. See Part II–B–3, infra. 14 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM SOTOMAYOR, J., dissenting through an assorted selection of cases and throws up its hands, contending that the case law merely reflects a wide range of circumstances for which individuals were deprived of their liberty. See ante, at 16–17. Thus, the Court con- cludes, the common law simply did not speak to whether individuals could seek “release” that would allow them to enter a country (as opposed to being expelled from it). At the same time, notwithstanding its professed keen in- terest in precedent, the Court seems to discount decisions supporting respondent’s view that habeas permitted re- lease from custody into the country. At least two other clas- ses of cases demonstrate that the writ was available from around the founding onward to noncitizens who were de- tained, and wanted to remain, including those who were prevented from entering the United States at all. First, common-law courts historically granted the writ to discharge deserting foreign sailors found and imprisoned in the United States. In Commonwealth v. Holloway, 1 Serg. & Rawle 392 (1815), the Pennsylvania Supreme Court granted a writ of habeas corpus to a Danish sailor who had deserted his vessel in violation of both an employment con- tract and Danish law. The court explained that the deser- tion did not violate any domestic law or treaty, and thus imprisonment was inappropriate. Id., at 396 (opinion of Tilghman, C. J.). By ordering an unconditional discharge and declining to return the noncitizen sailor to the custody of any foreign power, the court used the writ to order a re- lease that authorized a noncitizen to remain in the United States, a country “other than his own.” Ante, at 16. The same was true in similar cases that even the Court cites. See ante, at 19 (citing Case of the Deserters from the British Frigate L’Africaine, 3 Am. L. J. & Misc. Repertory 132 (Md. 1810) (reporting on a decision discharging deserters); Case of Hippolyte Dumas, 2 Am. L. J. & Misc. Repertory 86 (Pa. 1809) (same)). Curiously, the Court does not contest that the writs in Cite as: 591 U. S. ____ (2020) 15 SOTOMAYOR, J., dissenting these cases were used to secure the liberty of foreign sailors, and consequently their right to enter the country.3 Rather, it remarks that judges at the time “chafed at having to or- der even release,” ante, at 19, which some saw as incon- sistent with principles of comity, Holloway, 1 Serg. & Rawle, at 394. But reluctance is not inability. That those judges followed the law’s dictates despite their distaste for the result should give today’s Court pause. The Court seizes on one case where a court ordered a de- serting sailor to be returned to his foreign vessel-master. See ante, at 14, 19 (citing Ex parte D’Olivera, 7 F. Cas. 853, 854 (No. 3,967) (CC Mass. 1813)). But it reads too much into this one decision. In D’Olivera, the court held that de- serting sailors were unlawfully confined and granted a writ of habeas corpus, but directed that they be discharged to their vessel-master out of “a desire not to encourage deser- tion among foreign seamen.” Id., at 854. As illustrated by other deserter cases supra, the kind of results-oriented de- cisionmaking in D’Olivera does not seem to be the norm. The Court’s proclamation about how the scope of common- law habeas cannot hinge on a “single case” should have equal force here. Ante, at 18, n. 18. Next, courts routinely granted the writ to release wrong- fully detained noncitizens into Territories other than the detainees’ “own.” Many involved the release of fugitive or former slaves outside their home State. In these cases, courts decided legal questions as to the status of these peti- tioners. In Arabas v. Ivers, 1 Root 92 (Conn. Super. Ct. 1784), for example, a Connecticut court determined that a former slave from New York held in local jail on his alleged master’s instructions had, in fact, been freed through his service in the Continental Army. The court ordered him —————— 3 Indeed, the Court highlights a striking similarity to the present asy- lum challenge by observing that the foreign-deserter cases show the “use of habeas to secure release from custody when not in compliance with . . . statute[s] and relevant treaties.” Ante, at 21. 16 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM SOTOMAYOR, J., dissenting discharged “upon the ground that he was a freeman, abso- lutely manumitted from his master by enlisting and serving in the army.” Id., at 93. See also In re Belt, 7 N. Y. Leg. Obs. 80 (1848) (granting habeas to discharge an imprisoned fugitive slave whose owner did not timely apply for his re- turn to Maryland); In re Ralph, 1 Morris 1 (Iowa 1839) (dis- charging person from custody on the grounds that he was not a fugitive slave subject to return to Missouri when he had been allowed to travel to the Iowa Territory by his for- mer master); Commonwealth v. Holloway, 2 Serg. & Rawle 305 (Pa. 1816) (holding on habeas corpus that a child born in a free State to a slave was free); In re Richardson’s Case, 20 F. Cas. 703 (No. 11,778) (CC DC 1837) (ordering prisoner to be discharged in the District of Columbia because war- rant was insufficient to establish that he was a runaway slave from Maryland); Commonwealth v. Griffith, 19 Mass. 11 (1823) (contemplating that the status of a freeman seized in Massachusetts as an alleged fugitive from Virginia could be determined on habeas corpus). The weight of historical evidence demonstrates that com- mon-law courts at and near the founding granted habeas to noncitizen detainees to enter Territories not considered their own, and thus ordered the kind of release that the Court claims falls outside the purview of the common-law writ. The Court argues that none of this evidence is persuasive because the writ could not be used to compel authorization to enter the United States. Ante, at 20. But that analogy is inapt. Perhaps if respondent here sought to use the writ to grant naturalization, the comparison would be closer. But respondent sought only the proper interpretation and application of asylum law (which statutorily permits him to remain if he shows a credible fear of persecution), or in the alternative, release pursuant to the writ (despite being cog- nizant that he could be denied asylum or rearrested upon release if he were found within the country without legal Cite as: 591 U. S. ____ (2020) 17 SOTOMAYOR, J., dissenting authorization). But that consequence does not deprive re- spondent of the ability to invoke the writ in the first in- stance. See, e.g., Lewis v. Fullerton, 22 Va. 15 (1821) (af- firming that a judgment on habeas corpus in favor of a slave was not conclusive of her rights but merely permitted re- lease from custody on the record before the court and did not prohibit recapture by a master); Ralph, 1 Morris, at 1 (noting that an adjudication that petitioner was not a fugi- tive only exempted him from fugitive-slave laws but did not prohibit master from entering Territory to reclaim him on his own accord). For these reasons, the Court is wrong to dispute that com- mon-law habeas practice encompassed the kind of release respondent seeks here. 2 The Court also appears to contend that respondent sought merely additional procedures in his habeas adjudi- cation and that this kind of relief does not fall within the traditional scope of the writ. That reflects a misunder- standing of the writ. Habeas courts regularly afforded the state additional opportunities to show that a detention was lawful before ordering what the Court now considers a re- lease outright. The common-law writ of habeas corpus ad subjiciendum evolved into what we know and hail as the “Great Writ.” See 3 W. Blackstone, Commentaries on the Laws of Eng- land 131 (1768). That writ, at bottom, allowed a court to elicit the cause for an individual’s imprisonment and to en- sure that he be released, granted bail, or promptly tried. See Oaks, Habeas Corpus in the States—1776–1865, 32 U. Chi. L. Rev. 243, 244 (1965). From its origins, the writ did not require immediate release, but contained procedures that would allow the state to proceed against a detainee. Under the English Habeas Corpus Act of 1679, jailers were ordered to make a “return” to a writ within a designated 18 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM SOTOMAYOR, J., dissenting time period and certify the true causes of imprisonment. Id., at 252–253. Justices of the King’s Bench obtained re- turns that provided full legal accounts justifying detention. Halliday & White, The Suspension Clause: English Text, Imperial Contexts, and American Implications, 94 Va. L. Rev. 575, 599–600 (2008) (Halliday & White). They also examined and were guided by depositions upon which a de- tention was founded to determine whether to admit a peti- tioner to bail. Oaks, 32 U. Chi. L. Rev., at 258. Indeed, the King’s Bench routinely considered facts not asserted in the return to assist scrutiny of detentions. Halliday & White 610; see also id., at 611 (documenting instances where the court would consider affidavits of testimony beyond what was included in the return). Moreover, early practice showed that common-law ha- beas courts routinely held proceedings to determine whether detainees should be discharged immediately or whether the state could subject them to further proceed- ings, including trial in compliance with proper procedures. See Ex parte Bollman, 4 Cranch 75, 125 (1807) (taking tes- timony in conjunction with an “inquiry” to determine whether “the accused shall be discharged or held to trial”). In Ex parte Kaine, 14 F. Cas. 78 (No. 7,597) (CC SDNY 1853), for example, a federal court analyzed whether a pe- titioner, who had been found guilty of an offense by a com- missioner, was subject to extradition. The court passed on questions of law concerning whether the commissioner had the power to adjudicate petitioner’s criminality. Id., at 80. Ultimately, the court found that petitioner was “entitled to be discharged from imprisonment” due to defects in the pro- ceedings before the commissioner, but entertained further evidence on whether he could nevertheless be extradited. Id., at 82. Only after finding no additional evidence that would permit extradition did the court order release. Ibid. Similarly, in Coleman v. Tennessee, 97 U.S. 509 (1879), the petitioner had been convicted of a capital offense by a Cite as: 591 U. S. ____ (2020) 19 SOTOMAYOR, J., dissenting state court, even though he had committed the offense while a soldier in the United States Army. Id., at 510–511. This Court granted habeas on the grounds that the state- court judgment was void but, because the petitioner had also been found guilty of murder by a military court, never- theless turned the prisoner over to the custody of the mili- tary for appropriate punishment. Id., at 518–520. Not sur- prisingly, then, the Court has found that habeas courts may discharge detainees in a manner that would allow defects in a proceeding below to be corrected. In re Bonner, 151 U.S. 242, 261 (1894). These examples confirm that outright habeas release was not always immediately awarded. But they also show that common-law courts understood that relief short of release, such as ordering officials to comply with the law and to cor- rect underlying errors, nevertheless fell within the scope of a request for habeas corpus.4 3 Despite exalting the value of pre-1789 precedent, the Court’s key rationale for why respondent does not seek “re- lease” in the so-called traditional sense rests on an inappo- site, contemporary case: Munaf v. Geren, 553 U.S. 674 (2008).5 Ante, at 14. Munaf, the Court claims, shows that —————— 4 The Court considers irrelevant cases demonstrating that the execu- tive was permitted to cure defects in detention because “the legality of [respondent’s] detention is not in question” here. Ante, at 17; see also ante, at 32–33 (acknowledging that it is “often ‘appropriate’ to allow the executive to cure defects in a detention” in habeas cases (quoting Boumediene, 553 U.S., at 779)). But as explained in Part I–A, supra, that is exactly what respondent questions by arguing that his detention violated governing asylum law. 5 Oddly, the Court embraces Munaf—a recent decision involving de- tainees held outside the territorial limits of the United States who were subject to prosecution by a foreign sovereign—to support its conclusion about the availability of habeas review. Yet at the same time, it dis- misses respondent’s reliance on Boumediene v. Bush, 553 U.S. 723 (2008), outright on the grounds that the case is “not about immigration 20 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM SOTOMAYOR, J., dissenting habeas is not available to seek an order to be brought into this country. Ante, at 14. But that case is in a category of its own and has no bearing on respondent’s claims here. Munaf addressed a one-of-a-kind scenario involving the transfer of individuals between different sovereigns. There, two United States citizens in Iraq filed habeas petitions seeking to block their transfer to Iraqi authorities after be- ing accused of committing crimes and detained by Ameri- can-led coalition forces pending investigation and prosecu- tion in Iraqi courts. 553 U.S., at 679–680, 692. The central question, this Court repeatedly stated, was “whether United States district courts may exercise their habeas ju- risdiction to enjoin our Armed Forces from transferring in- dividuals detained within another sovereign’s territory to that sovereign’s government for criminal prosecution.” Id., at 689; see also id., at 704. In concluding that habeas did not extend to the relief sought by the citizens detained in Iraq, the Munaf Court relied on cases involving habeas petitions filed to avoid ex- tradition. Id., at 695–696 (citing Wilson v. Girard, 354 U.S. 524 (1957) (per curiam), and Neely v. Henkel, 180 U.S. 109 (1901)). These decisions, the Court concluded, established that American courts lack habeas jurisdiction to enjoin an extradition or similar transfer to a foreign sovereign exer- cising a right to prosecution. 553 U.S., at 696–697. These circumstances, which today’s Court overlooks, mean that Munaf is more like the extradition cases that the Court deems not “pertinent.” Ante, at 20.6 —————— at all.” Ante, at 32. 6 Nor is the Court correct in dismissing common-law extradition prec- edents as inapposite because they show “nothing more than the use of habeas to secure release from custody.” Ante, at 21. Indeed, these extra- dition cases demonstrate that the common-law writ encompassed exactly the kind of permission to remain in a country that the Court claims falls outside its scope. Ante, at 12, 14. In re Stupp, 23 F. Cas. 296 (No. 13,563) (CC SDNY 1875), which the Court cites in passing, emphatically af- firmed that habeas corpus was available to challenge detention pending Cite as: 591 U. S. ____ (2020) 21 SOTOMAYOR, J., dissenting In any event, respondent is not similarly situated to the petitioners in Munaf, who sought habeas to thwart removal from the United States in the face of a competing sover- eign’s interests. Mindful that the case implicated “sensitive foreign policy issues in the context of ongoing military op- erations,” the Munaf Court observed that granting habeas relief would “interfere with Iraq’s sovereign right to punish offenses against its laws committed within its borders.” 553 U.S., at 692 (internal quotation marks omitted); see also id., at 689, 694, 700. For that reason, it proceeded “ ‘with the circumspection appropriate when this Court is adjudi- cating issues inevitably entangled in the conduct of . . . in- ternational relations.’ ” Id., at 689, 692. Here, of course, no foreign sovereign is exercising a similar claim to custody over respondent during an ongoing conflict that would trig- ger the comity concerns that animated Munaf. —————— extradition: “[T]he great purposes of the writ of habeas corpus can be maintained, as they must be. The court issuing the writ must inquire and adjudge whether the commissioner acquired jurisdiction . . . and had before him legal and competent evidence of facts whereon to pass judg- ment as to the fact of criminality, and did not arbitrarily commit the ac- cused for surrender.” Id., at 303. Although the Stupp court did not ulti- mately issue the writ, other courts have. See, e.g., Ex parte Kaine, 14 F. Cas. 78, 82 (No. 7,597) (CC SDNY 1853) (granting the writ to a pris- oner whose detention was “in consequence of illegality in the proceedings under the [extradition] treaty”); Pettit v. Walshe, 194 U.S. 205, 219–220 (1904) (affirming a grant of habeas where a prisoner’s detention violated the terms of an extradition treaty with Great Britain); In re Washburn, 4 Johns. Ch. 106, 114 (N. Y. 1819) (granting a habeas petition of a noncit- izen after a request for extradition); People v. Goodhue, 2 Johns. Ch. 198, 200 (N. Y. 1816) (releasing prisoner subject to possible interstate extra- dition). These extradition-related habeas cases show that the writ was undoubtedly used to grant release in the very direction—that is, away from a foreign country and into the United States—that the Court today derides. Indeed, the same scholar the Court cites makes the point that extradition specifically allowed courts to hear challenges to the Execu- tive’s ability to “detain aliens for removal to another country at the re- quest of [the] government.” Neuman, Habeas Corpus, Executive Deten- tion, and the Removal of Aliens, 98 Colum. L. Rev. 961, 1003 (1998). 22 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM SOTOMAYOR, J., dissenting C Next, the Court casually dismisses nearly 70 years of precedent from the finality era, the most relevant historic period for examining judicial review of immigration deci- sions. It concludes that, in case after case, this Court exer- cised habeas review over legal questions arising in immi- gration cases akin to those at issue here, not because the Constitution required it but only because a statute permit- ted it. Ante, at 23–24. That conclusion is both wrong in its own right and repeats arguments this Court rejected a half century ago when reviewing this same body of cases. At the turn of the 20th century, immigration to the United States was relatively unrestricted. Public senti- ment, however, grew hostile toward many recent entrants, particularly migrant laborers from China. In response, Congress enacted the so-called Chinese Exclusion Act of 1882, ch. 126, 22 Stat. 58, which prohibited the entry of Chi- nese laborers to the United States. The Scott Act, ch. 1064, 25 Stat. 504, enacted in 1888, forbade reentry of Chinese laborers who had left after previously residing in this coun- try. Although immigration officials routinely denied entry to arriving migrants on the basis of these laws, many of these decisions were overturned by federal courts on habeas review. See, e.g., United States v. Jung Ah Lung, 124 U.S. 621 (1888). This did not escape Congress’ attention. See Select Com- mittee on Immigration & Naturalization, H. R. Rep. No. 4048, 51st Cong., 2d Sess., 273–275 (1891) (documenting rate of reversal of immigration exclusion orders by Federal District Court in San Francisco). Congress responded by enacting the Immigration Act of 1891, which stripped fed- eral courts of their power to review immigration denials: “All decisions made by the inspection officers or their assis- tants touching the right of any alien to land, when adverse to such right, shall be final unless appeal be taken to the Cite as: 591 U. S. ____ (2020) 23 SOTOMAYOR, J., dissenting superintendent of immigration, whose action shall be sub- ject to review by the Secretary of the Treasury.” Act of Mar. 3, 1891, §8, 26 Stat. 1085. By its terms, that restriction on federal judicial power was not limited to review of some un- defined subset of issues, such as questions of law or fact; it made executive immigration decisions final in all respects. The Court, however, quickly construed the statute in Nishimura Ekiu v. United States, 142 U.S. 651 (1892) (Ekiu), to preclude only review of executive factfinding. Having so construed the statute, the Court in Ekiu, and in case after case following Ekiu, recognized the availability of habeas to review a range of legal and constitutional ques- tions arising in immigration decisions. The crucial question here is whether the finality-era Courts adopted that con- struction of jurisdiction-stripping statutes because it was simply the correct interpretation of the statute’s terms and nothing more or because that construction was constitu- tionally compelled to ensure the availability of habeas re- view. The better view is that Ekiu’s construction of the 1891 statute was constitutionally compelled. In Ekiu, the Court recognized that a Japanese national was entitled to seek a writ of habeas corpus to review an exclusion decision issued almost immediately upon her ar- rival to the United States. As the Court notes, ante, at 26, the relevant issue in that case was whether the 1891 Act, “if construed as vesting . . . exclusive authority” in the Ex- ecutive to determine a noncitizen’s right to enter the United States, violated petitioner’s constitutional “right to the writ of habeas corpus, which carried with it the right to a deter- mination by the court as to the legality of her detention,” 142 U.S., at 656 (statement of the case). That is, the Ekiu Court confronted whether construing the 1891 Act as pre- cluding all judicial review of immigration decisions like the exclusion order at issue would violate the constitutional guarantee to habeas. The Court answered that question by construing the 1891 24 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM SOTOMAYOR, J., dissenting Act as precluding judicial review only of questions of fact. “An alien immigrant,” the Court first held, who is “pre- vented from landing [in the United States] by any [execu- tive] officer . . . and thereby restrained of his liberty, is doubtless entitled to a writ of habeas corpus to ascertain whether the restraint is lawful.” Id., at 660. The Court then explained that it had authority to hear the case (de- spite Congress’ clear elimination of judicial review) because it interpreted the 1891 Act as meaning only that an immi- gration official’s determination of “facts” was final and un- reviewable. Ibid. (explaining that Congress could entrust the final determination of facts to executive officers). After so articulating the 1891 Act’s limits on judicial re- view, the Court analyzed two challenges to the integrity of the proceedings, neither of which raised questions of histor- ical fact. See id., at 662–663 (considering whether immi- gration officer’s appointment was unconstitutional such that his actions were invalid); id., at 663 (determining whether proceedings were unlawful because the officer failed to take sworn testimony or make a record of the deci- sion).7 Although the Court ultimately concluded that those legal and constitutional challenges lacked merit, id., at 662–664, what matters is that the Court evaluated the ar- guments and recognized them as possible grounds for ha- beas relief. What, then, can Ekiu tell us? Today’s Court finds signif- icant that the brief opinion makes no explicit mention of the Suspension Clause. Ante, at 28. This omission, it con- cludes, can only mean that the Ekiu Court did not think that (or had no occasion to consider whether) the Suspen- sion Clause “imposed any limitations on the authority of Congress to restrict the issuance of writs of habeas corpus —————— 7 These claims are uncannily reminiscent of the kinds of claims re- spondent advances here. See Parts II–A and II–B, supra. Cite as: 591 U. S. ____ (2020) 25 SOTOMAYOR, J., dissenting in immigration matters.” Ante, at 27. According to this the- ory, Ekiu concluded that the plain terms of the1891 Act pro- hibited judicial review of executive factfinding alone, and nothing more can be said. But this myopic interpretation ignores many salient facts. To start, the 1891 Act was enacted for the purpose of limiting all judicial review of immigration decisions, not just a subset of factual issues that may arise in those deci- sions. Further, the plain terms of the statute did not cabin the limitation on judicial review to historical facts found by an immigration officer. Ekiu, moreover, evaluated the Act’s constitutionality in view of the petitioner’s argument that the limitation on judicial review violated the constitutional “right to the writ of habeas corpus.” 142 U.S., at 656 (state- ment of the case). These considerations all point in one di- rection: Even if the Ekiu Court did not explicitly hold that the Suspension Clause prohibits Congress from broadly limiting all judicial review in immigration proceedings, it certainly decided the case in a manner that avoided raising this constitutional question. Indeed, faced with a jurisdic- tion-stripping statute, the only review left for the Ekiu Court was that required by the Constitution and, by exten- sion, protected by the guarantee of habeas corpus. The Court also maintains that Ekiu concluded that “ ‘the act of 1891 is constitutional’ ” in full, not “only in part.” Ante, at 27 (quoting Ekiu, 142 U.S., at 664). Yet as the Court acknowledges, it was only “after interpreting the 1891 Act” as precluding judicial review of questions of fact alone that the Ekiu Court deemed it constitutional. Ante, at 26; see also Ekiu, 142 U.S., at 664 (concluding that “[t]he result” of its construction is that the 1891 Act “is constitu- tional”). That cannot mean that Ekiu found the 1891 Act constitutional even to the extent that it prevented all judi- cial review of immigration decisions, even those brought on habeas. What it can only mean, instead, is that Ekiu’s con- 26 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM SOTOMAYOR, J., dissenting struction of the 1891 Act was an answer to the constitu- tional question posed by the case: whether and to what ex- tent denying judicial review under the 1891 Act would vio- late the constitutional “right to the writ of habeas corpus.” 142 U.S., at 656 (statement of the case).8 Bolstering this interpretation is that the Court has re- peatedly reached the same result when interpreting subse- quent statutes purporting to strip federal courts of all juris- diction over immigration decisions. In Gegiow v. Uhl, 239 U.S. 3 (1915), for example, the Court observed that Ekiu decided that “[t]he conclusiveness of the decisions of immi- gration officers under [the 1891 Act]” referred only to “con- clusiveness upon matters of fact.” 239 U.S., at 9. It relied heavily on Ekiu to support its determination that the Im- migration Act of 1907, 34 Stat. 898, which also rendered decisions of immigration officers to be “final,” §25, id., at 907, similarly only barred judicial review of questions of fact, 239 U.S., at 9. Indeed, time and again, against a back- drop of statutes purporting to bar all judicial review of ex- ecutive immigration decisions, this Court has entertained habeas petitions raising a host of issues other than historic facts found by immigration authorities.9 —————— 8 The Court also claims that because Ekiu stated that the 1891 Act was constitutional, respondent must be wrong that Ekiu found the 1891 Act “unconstitutional in most of its applications (i.e., to all questions other than questions of fact).” Ante, at 27. But the point here is not that Ekiu actually found the 1891 Act unconstitutional in part; it is that Ekiu in- terpreted the 1891 Act to avoid rendering it unconstitutional in part. 9 See, e.g., The Japanese Immigrant Case, 189 U.S. 86 (1903) (habeas petition filed by noncitizen alleged to have entered unlawfully and ap- prehended four days after being let on shore); Gonzales v. Williams, 192 U.S. 1 (1904) (habeas petition filed by resident of Puerto Rico detained at the port, who claimed that Puerto Rican nationals are United States citizens allowed to enter the mainland as a matter of course); United States ex rel. Turner v. Williams, 194 U.S. 279 (1904) (habeas petition by noncitizen found within the United States 10 days after entry alleging his arrest was unconstitutional); Chin Yow v. United States, 208 U.S. 8 (1908) (habeas petition filed by a Chinese individual with a claim of U. S. Cite as: 591 U. S. ____ (2020) 27 SOTOMAYOR, J., dissenting To be sure, this entrenched line of cases does not directly state that habeas review of immigration decisions is consti- tutionally compelled. But an alternate understanding of those cases rests on an assumption that is farfetched at best: that, year after year, and in case after case, this Court simply ignored the unambiguous texts of the serial Immi- gration Acts limiting judicial review altogether. The Court’s pattern of hearing habeas cases despite those stat- utes’ contrary mandate reflects that the Court understood habeas review in those cases as not statutorily permitted but constitutionally compelled. In any event, we need not speculate now about whether the Ekiu Court, or the Courts that followed, had the consti- tutional right to habeas corpus in mind when they inter- preted jurisdiction-stripping statutes only to preclude re- view of historic facts. This Court has already identified which view is correct. In Heikkila v. Barber, 345 U.S. 229 (1953), the Court explained that Ekiu and its progeny had, in fact, construed the finality statutes to avoid serious con- stitutional questions about Congress’ ability to strip federal courts of their habeas power. As Heikkila reiterated, the key question in Ekiu (and in later cases analyzing finality statutes) was the extent to which the Constitution allowed Congress to make administrative decisions unreviewable. 345 U.S., at 234. And it concluded that the jurisdiction- stripping immigration statute in that case, a successor to —————— citizenship who was detained on a steamship and prohibited from disem- barking); Yee Won v. White, 256 U.S. 399 (1921) (habeas petition filed on behalf of noncitizen wife and child denied admission to the United States upon arrival despite claiming legal right to join a family member residing in the country); Tod v. Waldman, 266 U.S. 113 (1924) (habeas petition by family fleeing religious persecution in Russia denied entry on the grounds that they were likely to become a public charge); United States ex rel. Polymeris v. Trudell, 284 U.S. 279 (1932) (habeas petition filed by residents of Greek ancestry who left the United States and sought reentry after a lengthy trip abroad). 28 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM SOTOMAYOR, J., dissenting the 1891 Act, “preclud[ed] judicial intervention in deporta- tion cases except insofar as it was required by the Consti- tution.” Id., at 234–235. Heikkila thus settles the matter; during the finality era, this Court either believed that the Constitution required ju- dicial review on habeas of constitutional and legal questions arising in immigration decisions or, at the very least, thought that there was a serious question about whether the Constitution so required. Although the Court tries to minimize that conclusion as not dispositive of the question presented, ante, at 29, such a conclusion undoubtedly weighs against finding §1252(e)(2) constitutional in spite of its broad prohibition on reviewing constitutional and legal questions. The Court dismisses Heikkila and its explanation of the finality-era cases outright. It fixates on the fact that Heik- kila was not itself a habeas case and instead analyzed whether judicial review of immigration orders was availa- ble under the Administrative Procedure Act (APA). Ante, at 31–32. Heikkila’s discussion of the APA does not detract from its affirmation that when the language of a jurisdic- tion-stripping statute precludes all judicial review, the only review that is left is that required by the constitutional guarantee of habeas corpus. 345 U.S., at 235.10 Most im- portantly, Heikkila concluded that APA review was not equivalent to that judicial review. Second, the Court also —————— 10 Indeed, the Government itself embraced that position in a brief to the Court during that time. Brief for Respondent in Martinez v. Neelly, O. T. 1952, No. 218, p. 19 (“The clear purpose of this [finality] provision was to preclude judicial review of the Attorney General’s decisions in al- ien deportation cases insofar as the Congress could do so under the Con- stitution”); id., at 33 (“[T]he courts have long recognized” the finality pro- visions “restric[t] review of deportation orders as far as the Constitution permits”); see also id., at 18 (explaining that the finality provisions “pre- cluded judicial review of deportation orders except for the collateral re- view in habeas corpus which the Constitution prescribes in cases of per- sonal detention”). Cite as: 591 U. S. ____ (2020) 29 SOTOMAYOR, J., dissenting states that Heikkila never interpreted Ekiu as having found the 1891 Act “partly unconstitutional.” Ante, at 32. But there was no need for the Ekiu Court to find the 1891 Act unconstitutional in part to construe it as prohibiting only review of historic facts. Instead, as Heikkila explained, Ekiu reached its decision by exercising constitutional avoid- ance. By disregarding Heikkila, the Court ignores principles of stare decisis to stir up a settled debate. Cf. Ramos v. Loui- siana, 590 U. S. ___, ___, ___ (2020) (ALITO, J., dissenting) (slip op., at 1, 12). Perhaps its view is tinted by the fact that it doubts the Suspension Clause could limit Congress’ abil- ity to eliminate habeas jurisdiction at all. The Court scoffs at the notion that a limitation on judicial review would have been understood as an unconstitutional suspension of ha- beas, noting and distinguishing the limited number of occa- sions that this Court has found a suspension of the writ of habeas corpus. See ante, at 28–29; but see ante, at 7, n. 4 (THOMAS, J., concurring) (noting that historically, suspen- sions of habeas did not necessarily mention the availability of the writ). The references to those major historic mo- ments where this Court has identified a suspension only es- tablish the outer bounds of Congress’ suspension powers; it says nothing about whether, and to what extent, more lim- ited restrictions on judicial review might also be found un- constitutional. Indeed, the Court acknowledges that some thought it an open question during the finality era whether the Suspen- sion Clause imposes limits on Congress’ ability to limit ju- dicial review. See ante, at 31, n. 25 (quoting Justice Brewer’s concurring opinion in United States ex rel. Turner v. Williams, 194 U.S. 279, 295 (1904), raising the question). That this question remained unsettled, see n. 1, supra, suf- fices to support the Court’s conclusion in Heikkila: The fi- nality-era Courts endeavored to construe jurisdiction-strip- ping statutes to avoid serious constitutional questions 30 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM SOTOMAYOR, J., dissenting about the extent of congressional power to limit judicial re- view. At bottom, the better view of the finality-era cases is that they understood the habeas right they sustained to be, or at least likely to be, constitutionally compelled. Certainly the cases do not establish the Court’s simplistic view to the con- trary: That the finality-era Court entertained habeas peti- tions only because no statute limited its ability to do so, and no Constitutional provision required otherwise. That read- ing of precedent disregards significant indications that this Court persistently construed immigration statutes strip- ping courts of judicial review to avoid depriving noncitizens of constitutional habeas guarantees. Ignoring how past courts wrestled with this issue may make it easier for the Court to announce that there is no unconstitutional suspen- sion today. But by sweeping aside most of our immigration history in service of its conclusion, the Court reopens a question that this Court put to rest decades ago, and now decides it differently. The cost of doing so is enormous. The Court, on its own volition, limits a constitutional protection so respected by our Founding Fathers that they forbade its suspension except in the direst of circumstances. D Not only does the Court cast to one side our finality-era jurisprudence, it skims over recent habeas precedent. Per- haps that is because these cases undermine today’s deci- sion. Indeed, both INS v. St. Cyr, 533 U.S. 289 (2001), and Boumediene v. Bush, 553 U.S. 723 (2008), instruct that eliminating judicial review of legal and constitutional ques- tions associated with executive detention, like the expe- dited-removal statute at issue here does, is unconstitu- tional. The Court acknowledges St. Cyr’s holding but does not heed it. St. Cyr concluded that “ ‘[b]ecause of [the Suspen- sion] Clause some “judicial intervention in deportation Cite as: 591 U. S. ____ (2020) 31 SOTOMAYOR, J., dissenting cases” is unquestionably “required by the Constitution.” ’ ” Ante, at 33 (quoting 533 U.S., at 300). This statement af- firms what the finality-era cases long suggested: that the Suspension Clause limits Congress’ power to restrict judi- cial review in immigration cases. Nor did St. Cyr arrive at this conclusion simply based on canons of statutory con- struction. The Court spoke of deeper historical principles, affirming repeatedly that “[a]t its historical core, the writ of habeas corpus has served as a means of reviewing the le- gality of Executive detention, and it is in that context that its protections have been strongest.” Id., at 301; see also id., at 305 (“The writ of habeas corpus has always been available to review the legality of Executive detention”). The Court looked to founding era cases to establish that the scope of this guarantee extended to both the “interpreta- tion” and “application” of governing law, including law that guided the exercise of executive discretion. Id., at 302. Based on that history, the Court also concluded that “a serious Suspension Clause issue would be presented” by precluding habeas review in the removal context, id., at 305, even where there was “no dispute” that the Govern- ment had the legal authority to detain a noncitizen like St. Cyr, id., at 303. Thus based on the same principles that the Court purports to apply in this case, the St. Cyr Court reached the opposite conclusion: The Suspension Clause likely prevents Congress from eliminating judicial review of discretionary executive action in the deportation context, even when the writ is used to challenge more than the fact of detention itself. Boumediene reprised many of the rules articulated in St. Cyr. It first confirmed that the Suspension Clause applied to detainees held at Guantanamo Bay, repeating the “un- controversial” proposition that “the privilege of habeas cor- pus entitles” an executive detainee to a “meaningful oppor- tunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law.” 32 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM SOTOMAYOR, J., dissenting 553 U.S., at 779 (quoting St. Cyr, 533 U.S., at 302). Then the Court detailed the writ’s remedial scope. It affirmed that one of the “easily identified attributes of any constitu- tionally adequate habeas corpus proceeding” is that “the ha- beas court must have the power to order the conditional re- lease of an individual unlawfully detained.” 553 U.S., at 779. Notably, the Court explained that release “need not be the exclusive remedy,” reasoning that “common-law habeas corpus was, above all, an adaptable remedy” whose “precise application and scope changed depending upon the circum- stances.” Ibid. (citing 3 W. Blackstone, Commentaries *131). The Court noted that any habeas remedy might be tempered based on the traditional test for procedural ade- quacy in the due process context and thus could accommo- date the “rigor of any earlier proceedings.” 553 U.S., at 781 (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)). The Court discounts these cases because it objects to the perceived direction of respondent’s requested release. Ante, at 32 (explaining that Boumediene did not suggest that the enemy combatant petitioners were entitled to enter the United States upon release). It similarly contends that re- spondent’s attempted use of the writ is “very different” from that at issue in St. Cyr. Ante, at 33. Neither rejoinder is sound. St. Cyr and Boumediene con- firm that at minimum, the historic scope of the habeas power guaranteed judicial review of constitutional and le- gal challenges to executive action. They do not require re- lease as an exclusive remedy, let alone a particular direc- tion of release. Rather, both cases built on the legacy of the finality era where the Court, concerned about the constitu- tionality of limiting judicial review, unquestionably enter- tained habeas petitions from arriving migrants who raised the same types of questions respondent poses here. See, e.g., St. Cyr, 533 U.S., at 307 (citing United States ex rel. Accardi v. Shaughnessy, 347 U.S. 260 (1954) (habeas case Cite as: 591 U. S. ____ (2020) 33 SOTOMAYOR, J., dissenting attacking the denial of an application for suspension of de- portation); see also id., at 268 (“[W]e object to the Board’s alleged failure to exercise its own discretion, contrary to ex- isting valid regulations” (emphasis deleted))). As discussed above, respondent requests review of immi- gration officials’ allegedly unlawful interpretation of gov- erning asylum law, and seeks to test the constitutional ad- equacy of expedited removal procedures. As a remedy, he requests procedures affording a conditional release, but cer- tainly did not so limit his prayer for relief. His constitu- tional and legal challenges fall within the heartland of what St. Cyr said the common-law writ encompassed, and Boumediene confirms he is entitled to additional procedures as a form of conditional habeas relief. These precedents themselves resolve this case. * * * The Court wrongly declares that §1252(e)(2) can preclude habeas review of respondent’s constitutional and legal chal- lenges to his asylum proceedings. So too the Court errs in concluding that Congress need not provide a substitute mechanism to supply that review. In so holding, the Court manages to flout precedents governing habeas jurispru- dence from three separate eras. Each one shows that re- spondent is entitled to judicial review of his constitutional and legal claims. Because §1252(e)(2) excludes his chal- lenges from habeas proceedings, and because the INA does not otherwise provide for meaningful judicial review of the Executive’s removal determination, respondent has no ef- fective means of vindicating his right to habeas relief. Quite simply, the Constitution requires more. III Although the Court concludes that habeas relief is not available because of the particular kind of release that it 34 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM SOTOMAYOR, J., dissenting thinks respondent requests, it also suggests that respond- ent’s unlawful status independently prohibits him from challenging the constitutionality of the expedited removal proceedings. By determining that respondent, a recent un- lawful entrant who was apprehended close in time and place to his unauthorized border crossing, has no proce- dural due process rights to vindicate through his habeas challenge, the Court unnecessarily addresses a constitu- tional question in a manner contrary to the text of the Con- stitution and to our precedents. The Court stretches to reach the issue whether a noncit- izen like respondent is entitled to due process protections in relation to removal proceedings, which the court below mentioned only in a footnote and as an aside. See ante, at 34 (quoting 917 F.3d, at 1111, n. 15). In so doing, the Court opines on a matter neither necessary to its holding nor se- riously in dispute below.11 The Court is no more correct on the merits. To be sure, our cases have long held that foreigners who had never come into the United States—those “on the threshold of in- itial entry”—are not entitled to any due process with re- spect to their admission. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 212 (1953) (citing Ekiu, 142 U.S., at 660); see also Landon v. Plasencia, 459 U.S. 21, 32 (1982). That follows from this Courts’ holdings that the po- litical branches of Government have “plenary” sovereign power over regulating the admission of noncitizens to the United States. Ante, at 35; see also Ekiu, 142 U.S., at 659. —————— 11 While the Court contends that the writ of habeas corpus does not allow an individual to “obtain administrative review” or additional pro- cedures, it arrives at this conclusion only in the context of discussing what sorts of “relief ” properly qualified as release from custody at com- mon law. Ante, at 2, 14–16 (contrasting request for additional remedies with a “simple” release from custody). To the extent that this discussion necessarily prohibits federal courts from entertaining habeas petitions alleging due process violations in expedited removal proceedings, the Court’s separate discussion in Part IV is unnecessary. Cite as: 591 U. S. ____ (2020) 35 SOTOMAYOR, J., dissenting Noncitizens in this country, however, undeniably have due process rights. In Yick Wo v. Hopkins, 118 U.S. 356 (1886), the Court explained that “[t]he Fourteenth Amend- ment to the Constitution is not confined to the protection of citizens” but rather applies “to all persons within the terri- torial jurisdiction, without regard to any differences of race, of color, or of nationality.” Id., at 369; Zadvydas v. Davis, 533 U.S. 678, 693 (2001) (reiterating that “once an alien enters the country,” he is entitled to due process in his re- moval proceedings because “the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent”). In its early cases, the Court speculated whether a noncit- izen could invoke due process protections when he entered the country without permission or had resided here for too brief a period to “have become, in any real sense, a part of our population.” The Japanese Immigrant Case, 189 U.S. 86, 100 (1903); see also ante, at 34 (quoting Ekiu, 142 U.S., at 660 (remarking that for those not “ ‘admitted into the country pursuant to law,’ ” the procedures afforded by the political branches are all that are due)). But the Court has since determined that presence in the country is the touch- stone for at least some level of due process protections. See Mezei, 345 U.S., at 212 (explaining that “aliens who have once passed through our gates, even illegally,” possess con- stitutional rights); Mathews v. Diaz, 426 U.S. 67, 77 (1976) (“There are literally millions of aliens within the jurisdic- tion of the United States. The Fifth Amendment . . . pro- tects every one of these persons . . . . Even one whose pres- ence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection”). As a nonciti- zen within the territory of the United States, respondent is entitled to invoke the protections of the Due Process Clause. In order to reach a contrary conclusion, the Court as- sumes that those who do not enter the country legally have 36 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM SOTOMAYOR, J., dissenting the same due process rights as those who do not enter the country at all. The Court deems that respondent possesses only the rights of noncitizens on the “threshold of initial en- try,” skirting binding precedent by assuming that individu- als like respondent have “ ‘assimilated to [the] status’ ” of an arriving noncitizen for purposes of the constitutional anal- ysis. Mezei, 345 U.S., at 212, 214. But that relies on a legal fiction. Respondent, of course, was actually within the ter- ritorial limits of the United States. More broadly, by drawing the line for due process at legal admission rather than physical entry, the Court tethers constitutional protections to a noncitizen’s legal status as determined under contemporary asylum and immigration law. But the Fifth Amendment, which of course long pre- dated any admissions program, does not contain limits based on immigration status or duration in the country: It applies to “persons” without qualification. Yick Wo, 118 U.S., at 369. The Court has repeatedly affirmed as much long after Congress began regulating entry to the country. Mathews, 426 U.S., at 77; Zadvydas, 533 U.S., at 693–694. The Court lacks any textual basis to craft an exception to this rule, let alone one hinging on dynamic immigration laws that may be amended at any time, to redefine when an “entry” occurs. Fundamentally, it is out of step with how this Court has conceived the scope of the Due Process Clause for over a century: Congressional policy in the im- migration context does not dictate the scope of the Consti- tution. In addition to creating an atextual gap in the Constitu- tion’s coverage, the Court’s rule lacks any limiting princi- ple. This is not because our case law does not supply one. After all, this Court has long affirmed that noncitizens have due process protections in proceedings to remove them from the country once they have entered. See id., at 693–694; Mezei, 345 U.S., at 212. Cite as: 591 U. S. ____ (2020) 37 SOTOMAYOR, J., dissenting Perhaps recognizing the tension between its opinion to- day and those cases, the Court cabins its holding to individ- uals who are “in respondent’s position.” Ante, at 36. Pre- sumably the rule applies to—and only to—individuals found within 25 feet of the border who have entered within the past 24 hours of their apprehension. Where its logic must stop, however, is hard to say. Taken to its extreme, a rule conditioning due process rights on lawful entry would permit Congress to constitutionally eliminate all proce- dural protections for any noncitizen the Government deems unlawfully admitted and summarily deport them no matter how many decades they have lived here, how settled and integrated they are in their communities, or how many members of their family are U. S. citizens or residents. This judicially fashioned line-drawing is not administra- ble, threatens to create arbitrary divisions between noncit- izens in this country subject to removal proceedings, and, most important, lacks any basis in the Constitution. Both the Constitution and this Court’s cases plainly guarantee due process protections to all “persons” regardless of their immigration status, a guarantee independent of the whims of the political branches. This contrary proclamation by the Court unnecessarily decides a constitutional question in a manner contrary to governing law.12 IV The Court reaches its decision only by downplaying the —————— 12 The Court notes that noncitizens like respondent seeking legal ad- mission lack due process rights “ ‘regarding [their] application.’ ” Ante, at 34 (quoting Landon v. Plasencia, 459 U.S. 21, 32 (1982)). It does not, however, explain what kinds of challenges are related to one’s applica- tion and what kinds are not. Presumably a challenge to the length or conditions of confinement pending a hearing before an immigration judge falls outside that class of cases. Because respondent only sought prom- ised asylum procedures, however, today’s decision can extend no further than these claims for relief. 38 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM SOTOMAYOR, J., dissenting nature of respondent’s claims, ignoring a plethora of com- mon-law immigration cases from a time of relatively open borders, and mischaracterizing the most relevant prece- dents from this Court. Perhaps to shore up this unstable foundation, the Court justifies its decision by pointing to perceived vulnerabilities and abuses in the asylum system. I address the Court’s policy concerns briefly. In some ways, this country’s asylum laws have repre- sented the best of our Nation. Unrestricted migration at the founding and later, formal asylum statutes, have served as a beacon to the world, broadcasting the vitality of our institutions and our collective potential. For many who come here fleeing religious, political, or ideological persecu- tion, and for many more who have preceded them, asylum has provided both a form of shelter and a start to a better life. That is not to say that this country’s asylum policy has always, or ever, had overwhelming support. Indeed, many times in our past, particularly when the Nation’s future has appeared uncertain or bleak, members of this country have sought to close our borders rather than open them. See S. Legomsky & C. Rodriguez, Immigration and Refugee Law and Policy 875–876 (5th ed. 2009) (explaining that restric- tionist sentiments in the 1930s were fueled in part by the Great Depression). Yet this country has time and again re- affirmed its commitment to providing sanctuary to those es- caping oppression and persecution. Congress and the Ex- ecutive have repeatedly affirmed that choice in response to serial waves of migration from other countries by enacting and amending asylum laws and regulations. In fact, a cen- terpiece of respondent’s claim is that officials were not fol- lowing these statutorily enacted procedures. The volume of asylum claims submitted, pending, and granted has varied over the years, due to factors like chang- ing international migration patterns, the level of resources devoted to processing and adjudicating asylum applica- tions, and amendments to governing immigration laws. See Cite as: 591 U. S. ____ (2020) 39 SOTOMAYOR, J., dissenting Congressional Research Service, Immigration: U. S. Asy- lum Policy 25 (Feb. 19, 2019); see also Dept. of Homeland Security, Office of Immigration Statistics, 2018 Yearbook of Immigration Statistics 43 (2019) (Table 16) (“Individuals Granted Asylum Affirmatively or Defensively: Fiscal Years 1990 to 2018” (quotation modified)). For the past few years, both new asylum applications and pending applications have steadily increased. Immigration: U. S. Asylum Policy, at 25. It is universally acknowledged that the asylum regime is under strain. It is also clear that, while the reasons for the large pending caseload are complicated,13 delays in adjudi- cations are undesirable for a number of reasons. At bottom, when asylum claims are not resolved in a timely fashion, the protracted decisionmaking harms those eligible for pro- tection and undermines the integrity of the regime as a whole. D. Meissner, F. Hipsman, & T. Aleinikoff, Migration Policy Institute, The U. S. Asylum System in Crisis: Chart- ing a Way Forward 4 (Sept. 2018). But the political branches have numerous tools at their disposal to reform the asylum system, and debates over the best methods of doing so are legion in the Government, in the academy, and in the public sphere.14 Congress and the —————— 13 In 2018 Senate Judiciary Committee hearings, the Director of the Executive Office of Immigration Review identified factors contributing to the backlog of cases, including lengthy hiring times for new immigration judges and the continued use of paper files. See Testimony of James McHenry, Strengthening and Reforming America’s Immigration Court System, Hearings before the Subcommittee on Border Security and Im- migration of the Senate Committee on the Judiciary, 115th Cong., 2d Sess., 2 (2018). The Court, meanwhile, insinuates that much of the bur- den on the asylum system can be attributed to frivolous or fraudulent asylum claims. See, e.g., ante, at 1, 7–8, nn. 9 and 10. But the magnitude of asylum fraud has long been debated. See S. Legomsky & C. Rodriguez, Immigration and Refugee Law and Policy 1034 (5th ed. 2009); Immigra- tion: U. S. Asylum Policy, at 28. 14 See, e.g., GAO, Immigration Courts: Actions Needed To Reduce Case Backlog and Address Long-Standing Management and Operational 40 DEPARTMENT OF HOMELAND SECURITY v. THURAISSIGIAM SOTOMAYOR, J., dissenting Executive are thus well equipped to enact a range of measures to reform asylum in a number of ways and rou- tinely do so.15 Indeed, as the Court notes, the expedited re- moval process at issue here was created by law as one such measure to ease pressures on the immigration system. Ante, at 4. In the face of these policy choices, the role of the Judiciary is minimal, yet crucial: to ensure that laws passed by Con- gress are consistent with the limits of the Constitution. The Court today ignores its obligation, going out of its way to restrict the scope of the Great Writ and the reach of the Due Process Clause. This may accommodate congressional pol- icy concerns by easing the burdens under which the immi- gration system currently labors. But it is nothing short of a self-imposed injury to the Judiciary, to the separation of powers, and to the values embodied in the promise of the Great Writ. Because I disagree with the Court’s interpretation of the reach of our Constitution’s protections, I respectfully dis- sent. —————— Challenges (GAO–17–438, June 2017); Uchimiya, A Blackstone’s Ratio for Asylum: Fighting Fraud While Preserving Procedural Due Process for Asylum Seekers, 26 Pa. St. Int’l L. Rev. 383 (2007); Martin, Reform- ing Asylum Adjudication: On Navigating the Coast of Bohemia, 138 U. Pa. L. Rev. 1247 (1990). 15 P. Alvarez & G. Sands, Trump Administration Proposes Sweeping Changes to U. S. Asylum System in New Rule, CNN, June 10, 2020 (online source archived at www.supremecourt.gov)

The majority declares that the Executive ranch’s denial of asylum claims in expedited removal proceedings shall be functionally unreviewable through the writ of habeas cor- pus, no matter whether the denial is arbitrary or irrational or contrary to governing law. That determination flouts over a century of this Court’s practice. In case after case, we have heard claims indistinguishable from those re- spondent raises here, which fall within the heartland of ha- beas jurisdiction going directly to the origins of the Great Writ. The Court thus purges an entire class of legal challenges to executive detention from habeas review, circumscribing that foundational and “stable bulwark of our liberties,” W. lackstone, Commentaries 99 (m. ed. 8). y self-im- posing this limitation on habeas relief in the absence of a congressional suspension, the Court abdicates its constitu- tional duty and rejects precedent extending to the founda- tions of our common law. Making matters worse, the Court holds that the Consti- tution’s due process protections do not extend to noncitizens like respondent, who challenge the procedures used to de- termine whether they may seek shelter in this country or 2 DEPRTMENT OF HOMELND SECURITY v. THURISSIGIM SOTOMYOR, J., dissenting whether they may be cast to an unknown fate. The decision deprives them of any means to ensure the integrity of an expedited removal order, an order which, the Court has just held, is not subject to any meaningful judicial oversight as to its substance. In doing so, the Court upends settled con- stitutional law and paves the way toward transforming al- ready summary expedited removal proceedings into arbi- trary administrative adjudications. Today’s decision handcuffs the Judiciary’s ability to per- form its constitutional duty to safeguard individual liberty and dismantles a critical component of the separation of powers. It will leave significant exercises of executive dis- cretion unchecked in the very circumstance where the writ’s protections “have been strongest.” INS v. St. 533 U.S. 289, 30 nd it increases the risk of erroneous immigration decisions that contravene governing statutes and treaties. The Court appears to justify its decision by adverting to the burdens of affording robust judicial review of asylum decisions. ut our constitutional protections should not hinge on the vicissitudes of the political climate or bend to accommodate burdens on the Judiciary. I respectfully dis- sent. I The as-applied challenge here largely turns on how the Court construes respondent’s requests for relief. Its de- scriptions, as well as those of one of the concurrences, skew the essence of these claims. proper reframing thus is in Respondent first advances a straightforward legal ques- tion that courts have heard in habeas corpus proceedings in “case after case.” His habeas petition claimed that an asylum officer and Immigration Judge “appl[ied] an Cite as: 59 U. S. (2020) 3 SOTOMYOR, J., dissenting incorrect legal standard” by ordering him removed despite a showing of a significant possibility of credible fear to es- tablish “eligibility for asylum, withholding of removal, and [Convention gainst Torture] claims.” pp. 3–; see also 8 U.S. C. (setting standard for credible fear as “a significant possibility, taking into account the statements made by the alien and such other s as are known to the officer, that the alien could establish eli- gibility for asylum”). The Government itself has character- ized that claim as a challenge to the “ ‘application of a legal standard to ual determinations underlying the Ex- ecutive’s negative credible-fear findings.’ ” 7, n. 20 (C9 209) (case below). t bottom, respondent alleged that he was unlawfully denied admission under gov- erning asylum statutes and regulations. The Court disagrees, flattening respondent’s claim into a mere plea “ultimately to obtain authorization to stay in this country.” nte, at 2; see also ante, at 2 (describing the re- quest as a “right to enter or remain in a country”); ante, at 3, n. 4 (framing relief sought as “gaining a right to remain in this country”); ante, at 6 (equating relief with “authori- zation to remain in a country other than his own”). Yet while the Court repeatedly says that respondent seeks nothing more than admission as a matter of grace, its own descriptions of respondent’s habeas petition belie its asser- tions. See, e.g., ante, at 5, n. 5 (“[T]he gravamen of his pe- tition is that [respondent] faces persecution in Sri Lanka ‘because of ’ his Tamil ethnicity and political opinions”); (suggesting that the same persecution inquiry governs respondent’s Convention gainst Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment claim); ante, at 36, n. 28 (observing that respondent’s habeas peti- tion contains ual allegations that resemble documented persecution on the basis of ethnicity or political opinion). Though the Court refuses to admit as much, its descriptions of respondent’s arguments illustrate, at bottom, claims that 4 DEPRTMENT OF HOMELND SECURITY v. THURISSIGIM SOTOMYOR, J., dissenting immigration officials legally erred in their review of his asy- lum application. In papering over the true nature of respondent’s claims, the Court transforms his assertions of legal error in the ex- ercise of executive discretion into a naked demand for exec- utive action. ut the distinction between those forms of re- lief makes all the difference. The law has long permitted habeas petitioners to challenge the legality of the exercise of executive power, even if the executive action ultimately sought is discretionary. See St. (citing ). That principle has even more force today, where an entire scheme of statutes and regulations cabins the Exec- utive’s discretion in evaluating asylum applications. For that reason, the Court’s observation that the ultimate “grant of asylum is discretionary” is beside the point. nte, at 5, n. 4. For its part, one concurring opinion seems to acknowledge that claims that assert something other than pure ual error may constitutionally require some judi- cial review. nte, at 3–5 (REYER, J., concurring in judg- ment). It simply determines that respondent’s credible-fear claims amount to nothing more than a “disagreement with immigration officials’ findings about the two brute s un- derlying their credible-fear determination,” namely, the identity of his attackers and their motivations. nte, at 5. It also faults respondent for failing to develop his claims of legal error with citations “indicating that immigration offi- cials misidentified or misunderstood the proper legal stand- ard” or that they “disregarded” or were not properly trained in identifying relevant country conditions. nte, at 5–6. ut the essence of respondent’s petition is that the s as presented (that he, a Tamil minority in Sri Lanka, was abducted by unidentified men in a van and severely beaten), when considered in light of known country condi- tions (as required by statute), amount at least to a “signifi- cant possibility” that he could show a well-founded fear of Cite as: 59 U. S. (2020) 5 SOTOMYOR, J., dissenting persecution. So viewed, respondent’s challenge does not quibble with historic s, but rather claims that those “settled s satisfy a legal standard,” which this Court has held amounts to a “legal inquiry.” Guerrero-Lasprilla v. arr, 589 U. S. (2020) (slip op., at 4). The concur- ring opinion suggests that any conclusions drawn from the discrete settled s here could not be “so egregiously wrong” as to amount to legal error. nte, at 6. ut the ul- timate inquiry is simply whether the s presented satisfy a statutory standard. While this concurring opinion may believe that the s presented here do not show that re- spondent is entitled to relief, its view of the merits does not alter the legal nature of respondent’s challenge. Second, respondent contended that the inadequate proce- dures afforded to him in his removal proceedings violated constitutional due process. mong other things, he as- serted that the removal proceedings by design did not pro- vide him a meaningful opportunity to establish his claims, that the translator and asylum officer misunderstood him, and that he was not given a “reasoned explanation” for the decision. pp. 27, ; see also (arguing that “[u]nder constitutionally adequate procedures, [respond- ent] would have prevailed on his claims”). gain, however, the Court falls short of capturing the procedural relief ac- tually requested. The Court vaguely suggests that respond- ent merely wanted more cracks at obtaining review of his asylum claims, not that he wanted to challenge the existing expedited removal framework or the process actually ren- dered in his case as constitutionally inadequate. See ante, at 2 (characterizing respondent as asking for “additional administrative review of his asylum claim”); see also ante, at 5, n. 5 (describing petition as seeking “another oppor- tunity to apply for asylum”). That misconstrues respond- 6 DEPRTMENT OF HOMELND SECURITY v. THURISSIGIM SOTOMYOR, J., dissenting ent’s procedural challenges to the expedited removal pro- ceedings, which matters crucially; a constitutional chal- lenge to executive detention is just the sort of claim the com- mon law has long recognized as cognizable in habeas. See generally Part II, infra. One concurring opinion, meanwhile, properly character- izes respondent’s claims on this score as “procedural” chal- lenges. nte, at 7 (opinion of REYER, J.). Yet it concludes that those claims are not reviewable because they do not allege sufficiently serious defects. See ante, at 7–8 (describ- ing cognizable claims as those involving “ ‘no [ual] find- ing[s],’ ” contentions that officials “skipped a layer of intra- agency review altogether,” the “outright denial (or construc- tive denial) of a process,” or an official’s “fail[ure] entirely to take obligatory procedural steps”). ut these are simply distinctions of degree, not of kind. Respondent claimed that officials violated governing asylum regulations and de- prived him of due process by conducting an inadequate in- terview and providing incomplete translation services. It is difficult to see the difference between those claims and the ones that the concurring opinion upholds as cognizable. Cf. ante, at 7–8 (finding cognizable claims that an official “short-circuit[ed] altogether legally prescribed adjudication procedures by ‘dictating’ an immigration decision” and that an official deprived a noncitizen of “ ‘an opportunity to prove his right to enter the country, as the statute meant that he should have’ ”). Indeed, the concurring opinion notes that the core ques- tion is whether a defect “fundamentally undermined the ef- ficacy of process prescribed by law.” nte, at 7. Respond- ent’s petition plainly posits procedural defects that violate, or at least call into question, the “efficacy of process pre- scribed by law” and the Constitution. The concurring opinion might think that respondent is not entitled to addi- tional protections as a matter of law or that the s do not show he was denied any required process. ut conclusions Cite as: 59 U. S. (2020) 7 SOTOMYOR, J., dissenting about the merits of respondent’s procedural challenges should not foreclose his ability to bring them in the first place. C Finally, the Court asserts that respondent did not specif- ically seek “release” from custody in what the Court styles as the “traditional” sense of the term as understood in ha- beas jurisprudence. nte, at 0, 3; cf. ante, at 4 (suggest- ing that respondent “does not claim an entitlement to re- lease”). Instead, the Court seems to argue that respondent seeks only a peculiar form of release: admission into the United States or additional asylum procedures that would allow for admission into the United States. Such a request, the Court implies, is more akin to mandamus and injunc- tive relief. nte, at 3. ut it is the Court’s directionality requirement that bucks tradition. Respondent asks merely to be freed from wrongful executive custody. He asserts that he has a cred- ible fear of persecution, and asylum statutes authorize him to remain in the country if he does. That request is indis- tinguishable from, and no less “traditional” than, those long made by noncitizens challenging restraints that prevented them from otherwise entering or remaining in a country not their own. See Part II––, infra. The Court has also never described “release” as the sole remedy of the Great Writ. Nevertheless, respondent’s peti- tion is not limited in the way the Court claims. s it acknowledges, ante, at 0, respondent directly asked the District Court to “[i]ssue a writ of habeas corpus” without further limitation on the kind of relief that might entail, pp. 33. Respondent also sought “an [o]rder directing [the Government] to show cause why the writ should not be granted” and an order “directing [the Government] to va- cate the expedited removal order entered against [him].” s the petition’s plain language indicates, respondent 8 DEPRTMENT OF HOMELND SECURITY v. THURISSIGIM SOTOMYOR, J., dissenting raised a garden-variety plea for habeas relief in whatever form available and appropriate, including, but not limited to, release. * * * Fairly characterized, respondent’s claims allege legal er- ror (for violations of governing asylum law and for viola- tions of procedural due process) and an open-ended request for habeas relief. It is “uncontroversial” that the writ en- compasses such claims. See v. ush, 553 U.S. 723, 9 (concluding that release is but one form of relief available); see also St., 304– 308 (citing predating the founding to show that the writ could challenge “the erroneous application or interpre- tation” of relevant law); see also Part II–D, infra. II Only by recasting respondent’s claims and precedents does the Court reach its decision on the merits. y its ac- count, none of our governing recent or centuries old, recognize that the Suspension Clause guards a habeas right to the type of release that respondent allegedly seeks. —————— The Court wisely declines to explore whether the Suspension Clause independently guarantees the availability of the writ or simply restricts the temporary withholding of its operation, a point of disagreement be- tween the majority and dissent in INS v. St. nte, at n. 2. Justice Scalia, dissenting in St. wrote that the Suspension Clause “does not guarantee any content to (or even the exist- ence of ) the writ of habeas corpus, but merely provides that the writ shall not (except in case of rebellion or invasion) be suspended.” 533 U.S., at 337. ut no majority of this Court, at any time, has adopted that theory. Notably, moreover, even Justice Scalia appears to have abandoned his position just three years later in 555– 556 (2004) (dissenting opinion) (“The two ideas central to lackstone’s understanding—due process as the right secured, and habeas corpus as the instrument by which due process could be insisted upon by a citizen illegally imprisoned—found expression in the Constitution’s Due Process and Suspension Clauses”); see also (“The writ of habeas corpus Cite as: 59 U. S. (2020) 9 SOTOMYOR, J., dissenting nte, at 3, n. 4 (finding no evidence that the writ was un- derstood in 789 to grant relief that would amount to “gain- ing a right to remain in this country”); ante, at 3 (charac- terizing a “ ‘meaningful opportunity’ ” for review of asylum claims as falling outside of traditional notions of release from custody). n overview of starting from the colo- nial period to the present reveals that the Court is incor- rect, even accepting its improper framing of respondent’s claims. The critical inquiry, the Court contends, is whether re- spondent’s specific requests for relief (namely, admission into the United States or additional asylum procedures al- lowing for admission into the United States) fall within the scope of the kind of release afforded by the writ as it existed in 789. nte, at 2; see also ante, at 0 (criticizing the court below for holding unconstitutional “with- out citing any pre-789 case about the scope of the writ”). This scope, it explains, is what the Suspension Clause pro- tects “at a minimum.” nte, at ut as the Court implic- itly acknowledges, its inquiry is impossible. The inquiry also runs headlong into precedent, which has never de- manded the kind of precise ual match with pre-789 case law that today’s Court demands. To start, the Court recognizes the pitfalls of relying on pre-789 to establish principles relevant to immigra- tion and asylum: “t the time, England had nothing like modern immigration restrictions.” nte, –9 (“s late as 86, the word ‘deportation’ apparently ‘was not to be found in any English dictionary’ ”). It notes, too, that our —————— was preserved in the Constitution—the only common-law writ to be ex- plicitly mentioned”). Even one concurring opinion seems to recognize that the Suspension Clause “protect[s] a substantive right.” nte, at 3– 4 (opinion of THOMS, J.). 0 DEPRTMENT OF HOMELND SECURITY v. THURISSIGIM SOTOMYOR, J., dissenting have repeatedly observed the relative novelty of im- migration laws in the early days of this country. nte, at 20 (citing n. 5 (952) (“n open door to the immigrant was the early federal policy”); St. (remarking that the first immigration regulation was enacted in 875)); see also (O’Connor, J., concurring in part and concurring in judgment) (“ecause colonial merica imposed few restrictions on immigration, there is little case law prior to that time about the availa- bility of habeas review to challenge temporary detention pending exclusion or deportation”). The Court nevertheless seems to require respondent to engage in an exercise in futility. It demands that respond- ent unearth predating comprehensive federal immi- gration regulation showing that noncitizens obtained re- lease from federal custody onto national soil. ut no federal statutes at that time spoke to the permissibility of their en- try in the first instance; the United States lacked a compre- hensive asylum regime until the latter half of the 20th cen- tury. Despite the limitations inherent in this exercise, the Court appears to insist on a wealth of mirroring the precise relief requested at a granular level; nothing short of that, in the Court’s view, would demonstrate that a noncit- izen in respondent’s position is entitled to the writ. See ante, n. 8 (dismissing respondent’s cited on the ground that “[w]hether the founding generation understood habeas relief more broadly than described by lackstone, Justice Story, and our prior cannot be settled by a single case or even a few obscure and possibly aberrant ”); see also Neuman, Habeas Corpus, Executive Deten- tion, and the Removal of liens, (noting the inherent difficulties of a strict originalist approach in the habeas context because of, among other things, the dearth of reasoned habeas decisions at the founding). Cite as: 59 U. S. (2020) SOTOMYOR, J., dissenting ut this Court has never rigidly demanded a one-to-one match between a habeas petition and a common-law habeas analog. In St. for example, the Court considered whether a noncitizen with a controlled substance conviction could challenge on habeas the denial of a discretionary waiver of his deportation In doing so, the Court did not search high and low for founding-era parallels to waivers of deportation for criminal noncitizens. It simply asked, at a far more general level, whether habeas jurisdiction was historically “invoked on behalf of nonciti- zens in the immigration context” to “challenge Execu- tive detention in civil” That in- cluded determining whether “[h]abeas courts answered questions of law that arose in the context of discretionary relief ” (including questions regarding the allegedly “erro- neous application or interpretation of statutes”). at 302, and n. 8, 307. is even clearer that the Suspension Clause inquiry does not require a close (much less precise) ual match with historical habeas precedent. There, the Court concluded that the writ applied to noncitizen detainees held in despite frankly admit- ting that a “[d]iligent search by all parties reveal[ed] no cer- tain conclusions” about the relevant scope of the common- law writ in 789, Indeed, the Court reasoned that none of the cited illustrated whether a “common- law court would or would not have granted a petition for a writ of habeas corpus” like that brought by the noncitizen- detainee petitioners, and candidly acknowledged that “the common-law courts simply may not have confronted with close parallels.” 752. ut crucially, the Court declined to “infer too much, one way or the other, from the lack of historical evidence on point.” Instead, it sought to find comparable common-law habeas by “analogy.” at 748–752. There is no squaring the Court’s methodology today with 2 DEPRTMENT OF HOMELND SECURITY v. THURISSIGIM SOTOMYOR, J., dissenting St. or s those show, requiring near-complete equivalence between common-law habeas and respondent’s habeas claim is out of step with this Court’s longstanding approach in immigration pplying the correct (and commonsense) approach to de- fining the Great Writ’s historic scope reveals that respond- ent’s claims have long been recognized in habeas. Respondent cites Somerset v. Stewart, Lofft. 98 Eng. Rep. 499 (K. 2), as an example on point. There, Lord Mansfield issued a writ ordering release of a slave bound for Jamaica, holding that there was no basis in English law for “sending him over” to another country. at 7– 9, 98 Eng. Rep., at 509–50. Thus, the writ issued even though it “did not free [the] slave so much as it protected him from deportation.” P. Halliday, Habeas Corpus: From England to Empire 75 (200). Somerset establishes the longstanding availability of the writ to challenge the legal- ity of removal and to secure release into a country in which a petitioner sought shelter. Scholarly discussions of Mur- ray’s Case suggest much of the same. There, the King’s ench granted habeas to allow a nonnative to remain in England and to prevent his removal to Scotland for trial. Halliday, Habeas Corpus, at 236. The Court dismisses these examples outright. It acknowledges that the petitioner in Somerset may have been allowed to remain in England because of his release on habeas, yet declares that this was “due not to the wri[t] ordering [his] release” but rather to the existing state of the law. nte, at 20. ut the writ clearly did more than permit the petitioner to disembark from a vessel; it prevented him from being “sen[t] over” to Jamaica. Lofft., at 7, 98 Eng. Rep., at 509. What England’s immigration laws might have prescribed after the writ’s issuance did not bear on the Cite as: 59 U. S. (2020) 3 SOTOMYOR, J., dissenting availability of the writ as a means to remain in the country in the first instance. The Court also casts aside the s of Murray’s Case, even though they, too, reveal that habeas was used to per- mit a nonnative detainee to remain in a country. nte, at 8, n. 8. The Court minimizes the decision as “obscure and possibly aberrant.” ut given the relative paucity of habeas from this era, it is telling that the case serves as another example of the writ being used to allow a noncit- izen to remain in England.2 The reasoning of Somerset and Murray’s Case carried over to the Colonies, where colonial governments presumed habeas available to noncitizens to secure their residence in a territory. See generally Oldham & Wishnie, The Histori- cal Scope of Habeas Corpus and INS v. St. 6 Geo. Im- migration L. J. 485 (2002). For example, in 755, ritish authorities sought to deport French cadian settlers from Nova Scotia, then under the control of Great ritain, to the merican Colonies. The Governor and ssem- bly of South Carolina resisted the migrants’ arrival and de- tained them in ships off the coast of Charleston. They rec- ognized, however, that the exclusion could not persist because the migrants would be entitled to avail themselves of habeas Ultimately, the Governor re- leased most of the cadian migrants for resettlement throughout the Colony. Founding era courts accepted this view of the writ’s scope. Rather than credit these decisions, the Court marches —————— 2 The Court notes “the ‘delicate’ relationship between England and Scotland at the time” of Murray’s Case. nte, n. 8. Interestingly, the Court does not mention the delicate nature of the relationship be- tween the United States and Iraq in the centerpiece of the Court’s argument, even though that case arose during a military conflict. nte, at 4–5. Nor does it acknowledge the impact that the relationship had on the Munaf Court’s decision to refrain from issuing the writ. See Part II––3, infra. 4 DEPRTMENT OF HOMELND SECURITY v. THURISSIGIM SOTOMYOR, J., dissenting through an assorted selection of and throws up its hands, contending that the case law merely reflects a wide range of circumstances for which individuals were deprived of their liberty. See ante, at 6–7. Thus, the Court con- cludes, the common law simply did not speak to whether individuals could seek “release” that would allow them to enter a country (as opposed to being expelled from it). t the same time, notwithstanding its professed keen in- terest in precedent, the Court seems to discount decisions supporting respondent’s view that habeas permitted re- lease from custody into the country. t least two other clas- ses of demonstrate that the writ was available from around the founding onward to noncitizens who were de- tained, and wanted to remain, including those who were prevented from entering the United States at all. First, common-law courts historically granted the writ to discharge deserting foreign sailors found and imprisoned in the United States. In Commonwealth v. Holloway, Serg. & Rawle 392 (85), the Pennsylvania Supreme Court granted a writ of habeas corpus to a Danish sailor who had deserted his vessel in violation of both an employment con- tract and Danish law. The court explained that the deser- tion did not violate any domestic law or treaty, and thus imprisonment was inappropriate. (opinion of Tilghman, C. J.). y ordering an unconditional discharge and declining to return the noncitizen sailor to the custody of any foreign power, the court used the writ to order a re- lease that authorized a noncitizen to remain in the United States, a country “other than his own.” nte, at 6. The same was true in similar that even the Court cites. See ante, at 9 (citing Case of the Deserters from the ritish Frigate L’fricaine, 3 m. L. J. & Misc. Repertory (Md. 80) (reporting on a decision discharging deserters); Case of Hippolyte Dumas, 2 m. L. J. & Misc. Repertory 86 (Pa. 809) (same)). Curiously, the Court does not contest that the writs in Cite as: 59 U. S. (2020) 5 SOTOMYOR, J., dissenting these were used to secure the liberty of foreign sailors, and consequently their right to enter the country.3 Rather, it remarks that judges at the time “chafed at having to or- der even release,” ante, at 9, which some saw as incon- sistent with principles of comity, Holloway, Serg. & Rawle, at 394. ut reluctance is not inability. That those judges followed the law’s dictates despite their distaste for the result should give today’s Court pause. The Court seizes on one case where a court ordered a de- serting sailor to be returned to his foreign vessel-master. See ante, at 4, 9 (citing Ex parte D’Olivera, 854 (No. 3,967) (CC Mass. 83)). ut it reads too much into this one decision. In D’Olivera, the court held that de- serting sailors were unlawfully confined and granted a writ of habeas corpus, but directed that they be discharged to their vessel-master out of “a desire not to encourage deser- tion among foreign seamen.” s illustrated by other deserter the kind of results-oriented de- cisionmaking in D’Olivera does not seem to be the norm. The Court’s proclamation about how the scope of common- law habeas cannot hinge on a “single case” should have equal force here. nte, n. 8. Next, courts routinely granted the writ to release wrong- fully detained noncitizens into Territories other than the detainees’ “own.” Many involved the release of fugitive or former slaves outside their home State. In these courts decided legal questions as to the status of these peti- tioners. In (Conn. Super. Ct. 784), for example, a Connecticut court determined that a former slave from New York held in local jail on his alleged master’s instructions had, in been freed through his service in the Continental rmy. The court ordered him —————— 3 Indeed, the Court highlights a striking similarity to the present asy- lum challenge by observing that the foreign-deserter show the “use of habeas to secure release from custody when not in compliance with statute[s] and relevant treaties.” nte, at 2. 6 DEPRTMENT OF HOMELND SECURITY v. THURISSIGIM SOTOMYOR, J., dissenting discharged “upon the ground that he was a freeman, abso- lutely manumitted from his master by enlisting and serving in the army.” See also In re elt, 7 N. Y. Leg. Obs. 80 (848) (granting habeas to discharge an imprisoned fugitive slave whose owner did not timely apply for his re- turn to Maryland); In re (dis- charging person from custody on the grounds that he was not a fugitive slave subject to return to Missouri when he had been allowed to travel to the Iowa Territory by his for- mer master); Commonwealth v. Holloway, 2 Serg. & Rawle 305 (Pa. 86) (holding on habeas corpus that a child born in a free State to a slave was free); In re Richardson’s Case, (No.8) (CC DC 837) (ordering prisoner to be discharged in the District of Columbia because war- rant was insufficient to establish that he was a runaway slave from Maryland); Commonwealth v. Griffith, 9 Mass. (823) (contemplating that the status of a freeman seized in Massachusetts as an alleged fugitive from Virginia could be determined on habeas corpus). The weight of historical evidence demonstrates that com- mon-law courts at and near the founding granted habeas to noncitizen detainees to enter Territories not considered their own, and thus ordered the kind of release that the Court claims falls outside the purview of the common-law writ. The Court argues that none of this evidence is persuasive because the writ could not be used to compel authorization to enter the United States. nte, at 20. ut that analogy is inapt. Perhaps if respondent here sought to use the writ to grant naturalization, the comparison would be closer. ut respondent sought only the proper interpretation and application of asylum law (which statutorily permits him to remain if he shows a credible fear of persecution), or in the alternative, release pursuant to the writ (despite being cog- nizant that he could be denied asylum or rearrested upon release if he were found within the country without legal Cite as: 59 U. S. (2020) 7 SOTOMYOR, J., dissenting authorization). ut that consequence does not deprive re- spondent of the ability to invoke the writ in the first in- stance. See, e.g., (af- firming that a judgment on habeas corpus in favor of a slave was not conclusive of her rights but merely permitted re- lease from custody on the record before the court and did not prohibit recapture by a master); (noting that an adjudication that petitioner was not a fugi- tive only exempted him from fugitive-slave laws but did not prohibit master from entering Territory to reclaim him on his own accord). For these reasons, the Court is wrong to dispute that com- mon-law habeas practice encompassed the kind of release respondent seeks here. 2 The Court also appears to contend that respondent sought merely additional procedures in his habeas adjudi- cation and that this kind of relief does not fall within the traditional scope of the writ. That reflects a misunder- standing of the writ. Habeas courts regularly afforded the state additional opportunities to show that a detention was lawful before ordering what the Court now considers a re- lease outright. The common-law writ of habeas corpus ad subjiciendum evolved into what we know and hail as the “Great Writ.” See 3 W. lackstone, Commentaries on the Laws of Eng- land 3 (768). That writ, at bottom, allowed a court to elicit the cause for an individual’s imprisonment and to en- sure that he be released, granted bail, or promptly tried. See Habeas Corpus in the States—6–865, U. Chi. L. Rev. 243, 244 (965). From its origins, the writ did not require immediate release, but contained procedures that would allow the state to proceed against a detainee. Under the English Habeas Corpus ct of 679, jailers were ordered to make a “return” to a writ within a designated 8 DEPRTMENT OF HOMELND SECURITY v. THURISSIGIM SOTOMYOR, J., dissenting time period and certify the true causes of imprisonment. at 252–253. Justices of the King’s ench obtained re- turns that provided full legal accounts justifying detention. Halliday & White, The Suspension Clause: English Text, Imperial Contexts, and merican Implications, 94 Va. L. Rev. 575, 599–600 (Halliday & White). They also examined and were guided by depositions upon which a de- tention was founded to determine whether to admit a peti- tioner to bail. Indeed, the King’s ench routinely considered s not asserted in the return to assist scrutiny of detentions. Halliday & White 60; see also (documenting instances where the court would consider affidavits of testimony beyond what was included in the return). Moreover, early practice showed that common-law ha- beas courts routinely held proceedings to determine whether detainees should be discharged immediately or whether the state could subject them to further proceed- ings, including trial in compliance with proper procedures. See Ex parte ollman, (taking tes- timony in conjunction with an “inquiry” to determine whether “the accused shall be discharged or held to trial”). In Ex parte Kaine, (No. 7,597) (CC SDNY 853), for example, a federal court analyzed whether a pe- titioner, who had been found guilty of an offense by a com- missioner, was subject to extradition. The court passed on questions of law concerning whether the commissioner had the power to adjudicate petitioner’s criminality. Ultimately, the court found that petitioner was “entitled to be discharged from imprisonment” due to defects in the pro- ceedings before the commissioner, but entertained further evidence on whether he could nevertheless be extradited. Only after finding no additional evidence that would permit extradition did the court order release. Similarly, in the petitioner had been convicted of a capital offense by a Cite as: 59 U. S. (2020) 9 SOTOMYOR, J., dissenting state court, even though he had committed the offense while a soldier in the United States rmy. at 50–5. This Court granted habeas on the grounds that the state- court judgment was void but, because the petitioner had also been found guilty of murder by a military court, never- theless turned the prisoner over to the custody of the mili- tary for appropriate punishment. at 58–520. Not sur- prisingly, then, the Court has found that habeas courts may discharge detainees in a manner that would allow defects in a proceeding below to be corrected. In re onner, 5 U.S. 242, 26 (894). These examples confirm that outright habeas release was not always immediately awarded. ut they also show that common-law courts understood that relief short of release, such as ordering officials to comply with the law and to cor- rect underlying errors, nevertheless fell within the scope of a request for habeas 4 3 Despite exalting the value of pre-789 precedent, the Court’s key rationale for why respondent does not seek “re- lease” in the so-called traditional sense rests on an inappo- site, contemporary case:5 nte, at 4. Munaf, the Court claims, shows that —————— 4 The Court considers irrelevant demonstrating that the execu- tive was permitted to cure defects in detention because “the legality of [respondent’s] detention is not in question” here. nte, at 7; see also ante, –33 (acknowledging that it is “often ‘appropriate’ to allow the executive to cure defects in a detention” in habeas ( )). ut as explained in Part I–, that is exactly what respondent questions by arguing that his detention violated governing asylum law. 5 Oddly, the Court embraces Munaf—a recent decision involving de- tainees held outside the territorial limits of the United States who were subject to prosecution by a foreign sovereign—to support its conclusion about the availability of habeas review. Yet at the same time, it dis- misses respondent’s reliance on v. ush, outright on the grounds that the case is “not about immigration 20 DEPRTMENT OF HOMELND SECURITY v. THURISSIGIM SOTOMYOR, J., dissenting habeas is not available to seek an order to be brought into this country. nte, at 4. ut that case is in a category of its own and has no bearing on respondent’s claims here. Munaf addressed a one-of-a-kind scenario involving the transfer of individuals between different sovereigns. There, two United States citizens in Iraq filed habeas petitions seeking to block their transfer to Iraqi authorities after be- ing accused of committing crimes and detained by meri- can-led coalition forces pending investigation and prosecu- tion in Iraqi –680, 692. The central question, this Court repeatedly stated, was “whether United States district courts may exercise their habeas ju- risdiction to enjoin our rmed Forces from transferring in- dividuals detained within another sovereign’s territory to that sovereign’s government for criminal ” at 689; see also In concluding that habeas did not extend to the relief sought by the citizens detained in Iraq, the Munaf Court relied on involving habeas petitions filed to avoid ex- tradition. at 695–696 (citing Wilson v. Girard, 354 U.S. 524 (957) (per curiam), and (90)). These decisions, the Court concluded, established that merican courts lack habeas jurisdiction to enjoin an extradition or similar transfer to a foreign sovereign exer- cising a right to –697. These circumstances, which today’s Court overlooks, mean that Munaf is more like the extradition that the Court deems not “pertinent.” nte, at 20.6 —————— at all.” nte, 6 Nor is the Court correct in dismissing common-law extradition prec- edents as inapposite because they show “nothing more than the use of habeas to secure release from custody.” nte, at 2. Indeed, these extra- dition demonstrate that the common-law writ encompassed exactly the kind of permission to remain in a country that the Court claims falls outside its scope. nte, at 2, 4. In re Stupp, (No. 3,563) (CC SDNY 875), which the Court cites in passing, emphatically af- firmed that habeas corpus was available to challenge detention pending Cite as: 59 U. S. (2020) 2 SOTOMYOR, J., dissenting In any event, respondent is not similarly situated to the petitioners in Munaf, who sought habeas to thwart removal from the United States in the face of a competing sover- eign’s interests. Mindful that the case implicated “sensitive foreign policy issues in the context of ongoing military op- erations,” the Munaf Court observed that granting habeas relief would “interfere with Iraq’s sovereign right to punish offenses against its laws committed within its borders.” 553 U.S., at 692 (internal quotation marks omitted); see also For that reason, it proceeded “ ‘with the circumspection appropriate when this Court is adjudi- cating issues inevitably entangled in the conduct of in- ternational relations.’ ” Here, of course, no foreign sovereign is exercising a similar claim to custody over respondent during an ongoing conflict that would trig- ger the comity concerns that animated Munaf. —————— extradition: “[T]he great purposes of the writ of habeas corpus can be maintained, as they must be. The court issuing the writ must inquire and adjudge whether the commissioner acquired jurisdiction and had before him legal and competent evidence of s whereon to pass judg- ment as to the of criminality, and did not arbitrarily commit the ac- cused for surrender.” lthough the Stupp court did not ulti- mately issue the writ, other courts have. See, e.g., Ex parte Kaine, 4 F. Cas. 78, 82 (No. 7,597) (CC SDNY 853) (granting the writ to a pris- oner whose detention was “in consequence of illegality in the proceedings under the [extradition] treaty”); 29–220 (affirming a grant of habeas where a prisoner’s detention violated the terms of an extradition treaty with Great ritain); In re Washburn, (granting a habeas petition of a noncit- izen after a request for extradition); 200 (N. Y. 86) (releasing prisoner subject to possible interstate extra- dition). These extradition-related habeas show that the writ was undoubtedly used to grant release in the very direction—that is, away from a foreign country and into the United States—that the Court today derides. Indeed, the same scholar the Court cites makes the point that extradition specifically allowed courts to hear challenges to the Execu- tive’s ability to “detain aliens for removal to another country at the re- quest of [the] government.” Neuman, Habeas Corpus, Executive Deten- tion, and the Removal of liens, 22 DEPRTMENT OF HOMELND SECURITY v. THURISSIGIM SOTOMYOR, J., dissenting C Next, the Court casually dismisses nearly 70 years of precedent from the finality era, the most relevant historic period for examining judicial review of immigration deci- sions. It concludes that, in case after case, this Court exer- cised habeas review over legal questions arising in immi- gration akin to those at issue here, not because the Constitution required it but only because a statute permit- ted it. nte, at 23–24. That conclusion is both wrong in its own right and repeats arguments this Court rejected a half century ago when reviewing this same body of t the turn of the 20th century, immigration to the United States was relatively unrestricted. Public senti- ment, however, grew hostile toward many recent entrants, particularly migrant laborers from China. In response, Congress enacted the so-called Chinese Exclusion ct of 882, ch. 26, which prohibited the entry of Chi- nese laborers to the United States. The Scott ct, ch. 064, enacted in 888, forbade reentry of Chinese laborers who had left after previously residing in this coun- try. lthough immigration officials routinely denied entry to arriving migrants on the basis of these laws, many of these decisions were overturned by federal courts on habeas review. See, e.g., United States v. Jung h Lung, 24 U.S. 62 (888). This did not escape Congress’ attention. See Select Com- mittee on Immigration & Naturalization, H. R. Rep. No. 4048, 5st Cong., 2d Sess., 273–275 (89) (documenting rate of reversal of immigration exclusion orders by Federal District Court in San Francisco). Congress responded by enacting the Immigration ct of 89, which stripped fed- eral courts of their power to review immigration denials: “ll decisions made by the inspection officers or their assis- tants touching the right of any alien to land, when adverse to such right, shall be final unless appeal be taken to the Cite as: 59 U. S. (2020) 23 SOTOMYOR, J., dissenting superintendent of immigration, whose action shall be sub- ject to review by the Secretary of the Treasury.” ct of Mar. 3, 89, y its terms, that restriction on federal judicial power was not limited to review of some un- defined subset of issues, such as questions of law or ; it made executive immigration decisions final in all respects. The Court, however, quickly construed the statute in Nishimura (), to preclude only review of executive finding. Having so construed the statute, the Court in and in case after case following recognized the availability of habeas to review a range of legal and constitutional ques- tions arising in immigration decisions. The crucial question here is whether the finality-era Courts adopted that con- struction of jurisdiction-stripping statutes because it was simply the correct interpretation of the statute’s terms and nothing more or because that construction was constitu- tionally compelled to ensure the availability of habeas re- view. The better view is that ’s construction of the 89 statute was constitutionally compelled. In the Court recognized that a Japanese national was entitled to seek a writ of habeas corpus to review an exclusion decision issued almost immediately upon her ar- rival to the United States. s the Court notes, ante, at 26, the relevant issue in that case was whether the 89 ct, “if construed as vesting exclusive authority” in the Ex- ecutive to determine a noncitizen’s right to enter the United States, violated petitioner’s constitutional “right to the writ of habeas corpus, which carried with it the right to a deter- mination by the court as to the legality of her detention,” That is, the Court confronted whether construing the 89 ct as pre- cluding all judicial review of immigration decisions like the exclusion order at issue would violate the constitutional guarantee to habeas. The Court answered that question by construing the 89 24 DEPRTMENT OF HOMELND SECURITY v. THURISSIGIM SOTOMYOR, J., dissenting ct as precluding judicial review only of questions of “n alien immigrant,” the Court first held, who is “pre- vented from landing [in the United States] by any [execu- tive] officer and thereby restrained of his liberty, is doubtless entitled to a writ of habeas corpus to ascertain whether the restraint is lawful.” The Court then explained that it had authority to hear the case (de- spite Congress’ clear elimination of judicial review) because it interpreted the 89 ct as meaning only that an immi- gration official’s determination of “s” was final and un- reviewable. (explaining that Congress could entrust the final determination of s to executive officers). fter so articulating the 89 ct’s limits on judicial re- view, the Court analyzed two challenges to the integrity of the proceedings, neither of which raised questions of histor- ical See at 662–663 (considering whether immi- gration officer’s appointment was unconstitutional such that his actions were invalid); (determining whether proceedings were unlawful because the officer failed to take sworn testimony or make a record of the deci- sion).7 lthough the Court ultimately concluded that those legal and constitutional challenges lacked merit, at 662–664, what matters is that the Court evaluated the ar- guments and recognized them as possible grounds for ha- beas relief. What, then, can tell us? Today’s Court finds signif- icant that the brief opinion makes no explicit mention of the Suspension Clause. nte, at 28. This omission, it con- cludes, can only mean that the Court did not think that (or had no occasion to consider whether) the Suspen- sion Clause “imposed any limitations on the authority of Congress to restrict the issuance of writs of habeas corpus —————— 7 These claims are uncannily reminiscent of the kinds of claims re- spondent advances here. See Parts II– and II–, Cite as: 59 U. S. (2020) 25 SOTOMYOR, J., dissenting in immigration matters.” nte, at 27. ccording to this the- ory, concluded that the plain terms of the89 ct pro- hibited judicial review of executive finding alone, and nothing more can be said. ut this myopic interpretation ignores many salient s. To start, the 89 ct was enacted for the purpose of limiting all judicial review of immigration decisions, not just a subset of ual issues that may arise in those deci- sions. Further, the plain terms of the statute did not cabin the limitation on judicial review to historical s found by an immigration officer. moreover, evaluated the ct’s constitutionality in view of the petitioner’s argument that the limitation on judicial review violated the constitutional “right to the writ of habeas ” (state- ment of the case). These considerations all point in one di- rection: Even if the Court did not explicitly hold that the Suspension Clause prohibits Congress from broadly limiting all judicial review in immigration proceedings, it certainly decided the case in a manner that avoided raising this constitutional question. Indeed, faced with a jurisdic- tion-stripping statute, the only review left for the Court was that required by the Constitution and, by exten- sion, protected by the guarantee of habeas The Court also maintains that concluded that “ ‘the act of 89 is constitutional’ ” in full, not “only in part.” nte, at 27 ( ). Yet as the Court acknowledges, it was only “after interpreting the 89 ct” as precluding judicial review of questions of alone that the Court deemed it constitutional. nte, at 26; see also (concluding that “[t]he result” of its construction is that the 89 ct “is constitu- tional”). That cannot mean that found the 89 ct constitutional even to the extent that it prevented all judi- cial review of immigration decisions, even those brought on habeas. What it can only mean, instead, is that ’s con- 26 DEPRTMENT OF HOMELND SECURITY v. THURISSIGIM SOTOMYOR, J., dissenting struction of the 89 ct was an answer to the constitu- tional question posed by the case: whether and to what ex- tent denying judicial review under the 89 ct would vio- late the constitutional “right to the writ of habeas ”8 olstering this interpretation is that the Court has re- peatedly reached the same result when interpreting subse- quent statutes purporting to strip federal courts of all juris- diction over immigration decisions. In Gegiow v. Uhl, 239 U.S. 3 (95), for example, the Court observed that decided that “[t]he conclusiveness of the decisions of immi- gration officers under [the 89 ct]” referred only to “con- clusiveness upon matters of” It relied heavily on to support its determination that the Im- migration ct of 907, which also rendered decisions of immigration officers to be “final,” at 907, similarly only barred judicial review of questions of Indeed, time and again, against a back- drop of statutes purporting to bar all judicial review of ex- ecutive immigration decisions, this Court has entertained habeas petitions raising a host of issues other than historic s found by immigration authorities.9 —————— 8 The Court also claims that because stated that the 89 ct was constitutional, respondent must be wrong that found the 89 ct “unconstitutional in most of its applications (i.e., to all questions other than questions of ).” nte, at 27. ut the point here is not that actually found the 89 ct unconstitutional in part; it is that in- terpreted the 89 ct to avoid rendering it unconstitutional in part. 9 See, e.g., The Japanese Immigrant Case, (habeas petition filed by noncitizen alleged to have entered unlawfully and ap- prehended four days after being let on shore); Gonzales v. Williams, 92 U.S. (habeas petition filed by resident of Puerto Rico detained at the port, who claimed that Puerto Rican nationals are United States citizens allowed to enter the mainland as a matter of course); United States ex rel. (habeas petition by noncitizen found within the United States 0 days after entry alleging his arrest was unconstitutional); Chin (908) (habeas petition filed by a Chinese individual with a claim of U. S. Cite as: 59 U. S. (2020) 27 SOTOMYOR, J., dissenting To be sure, this entrenched line of does not directly state that habeas review of immigration decisions is consti- tutionally compelled. ut an alternate understanding of those rests on an assumption that is farfetched at best: that, year after year, and in case after case, this Court simply ignored the unambiguous texts of the serial Immi- gration cts limiting judicial review altogether. The Court’s pattern of hearing habeas despite those stat- utes’ contrary mandate reflects that the Court understood habeas review in those as not statutorily permitted but constitutionally compelled. In any event, we need not speculate now about whether the Court, or the Courts that followed, had the consti- tutional right to habeas corpus in mind when they inter- preted jurisdiction-stripping statutes only to preclude re- view of historic s. This Court has already identified which view is correct. In Heikkila v. arber, (953), the Court explained that and its progeny had, in construed the finality statutes to avoid serious con- stitutional questions about Congress’ ability to strip federal courts of their habeas power. s Heikkila reiterated, the key question in (and in later analyzing finality statutes) was the extent to which the Constitution allowed Congress to make administrative decisions unreviewable. nd it concluded that the jurisdiction- stripping immigration statute in that case, a successor to —————— citizenship who was detained on a steamship and prohibited from disem- barking); Yee (habeas petition filed on behalf of noncitizen wife and child denied admission to the United States upon arrival despite claiming legal right to join a family member residing in the country); (habeas petition by family fleeing religious persecution in Russia denied entry on the grounds that they were likely to become a public charge); United States ex rel. (habeas petition filed by residents of Greek ancestry who left the United States and sought reentry after a lengthy trip abroad). 28 DEPRTMENT OF HOMELND SECURITY v. THURISSIGIM SOTOMYOR, J., dissenting the 89 ct, “preclud[ed] judicial intervention in deporta- tion except insofar as it was required by the Consti- tution.” at 234–235. Heikkila thus settles the matter; during the finality era, this Court either believed that the Constitution required ju- dicial review on habeas of constitutional and legal questions arising in immigration decisions or, at the very least, thought that there was a serious question about whether the Constitution so required. lthough the Court tries to minimize that conclusion as not dispositive of the question presented, ante, at 29, such a conclusion undoubtedly weighs against finding constitutional in spite of its broad prohibition on reviewing constitutional and legal questions. The Court dismisses Heikkila and its explanation of the finality-era outright. It fixates on the that Heik- kila was not itself a habeas case and instead analyzed whether judicial review of immigration orders was availa- ble under the dministrative Procedure ct (P). nte, at 3–. Heikkila’s discussion of the P does not detract from its affirmation that when the language of a jurisdic- tion-stripping statute precludes all judicial review, the only review that is left is that required by the constitutional guarantee of habeas0 Most im- portantly, Heikkila concluded that P review was not equivalent to that judicial review. Second, the Court also —————— 0 Indeed, the Government itself embraced that position in a brief to the Court during that time. rief for Respondent in Martinez v. Neelly, O. T. 952, No. 28, p. 9 (“The clear purpose of this [finality] provision was to preclude judicial review of the ttorney General’s decisions in al- ien deportation insofar as the Congress could do so under the Con- stitution”); (“[T]he courts have long recognized” the finality pro- visions “restric[t] review of deportation orders as far as the Constitution permits”); see also (explaining that the finality provisions “pre- cluded judicial review of deportation orders except for the collateral re- view in habeas corpus which the Constitution prescribes in of per- sonal detention”). Cite as: 59 U. S. (2020) 29 SOTOMYOR, J., dissenting states that Heikkila never interpreted as having found the 89 ct “partly unconstitutional.” nte, ut there was no need for the Court to find the 89 ct unconstitutional in part to construe it as prohibiting only review of historic s. Instead, as Heikkila explained, reached its decision by exercising constitutional avoid- ance. y disregarding Heikkila, the Court ignores principles of stare decisis to stir up a settled debate. Cf. Ramos v. Loui- siana, 590 U. S. (2020) (LITO, J., dissenting) (slip op., at 2). Perhaps its view is tinted by the that it doubts the Suspension Clause could limit Congress’ abil- ity to eliminate habeas jurisdiction at all. The Court scoffs at the notion that a limitation on judicial review would have been understood as an unconstitutional suspension of ha- beas, noting and distinguishing the limited number of occa- sions that this Court has found a suspension of the writ of habeas See ante, at 28–29; but see ante, at 7, n. 4 (THOMS, J., concurring) (noting that historically, suspen- sions of habeas did not necessarily mention the availability of the writ). The references to those major historic mo- ments where this Court has identified a suspension only es- tablish the outer bounds of Congress’ suspension powers; it says nothing about whether, and to what extent, more lim- ited restrictions on judicial review might also be found un- constitutional. Indeed, the Court acknowledges that some thought it an open question during the finality era whether the Suspen- sion Clause imposes limits on Congress’ ability to limit ju- dicial review. See ante, at 3, n. 25 raising the question). That this question remained unsettled, see n. suf- fices to support the Court’s conclusion in Heikkila: The fi- nality-era Courts endeavored to construe jurisdiction-strip- ping statutes to avoid serious constitutional questions 30 DEPRTMENT OF HOMELND SECURITY v. THURISSIGIM SOTOMYOR, J., dissenting about the extent of congressional power to limit judicial re- view. t bottom, the better view of the finality-era is that they understood the habeas right they sustained to be, or at least likely to be, constitutionally compelled. Certainly the do not establish the Court’s simplistic view to the con- trary: That the finality-era Court entertained habeas peti- tions only because no statute limited its ability to do so, and no Constitutional provision required otherwise. That read- ing of precedent disregards significant indications that this Court persistently construed immigration statutes strip- ping courts of judicial review to avoid depriving noncitizens of constitutional habeas guarantees. Ignoring how past courts wrestled with this issue may make it easier for the Court to announce that there is no unconstitutional suspen- sion today. ut by sweeping aside most of our immigration history in service of its conclusion, the Court reopens a question that this Court put to rest decades ago, and now decides it differently. The cost of doing so is enormous. The Court, on its own volition, limits a constitutional protection so respected by our Founding Fathers that they forbade its suspension except in the direst of circumstances. D Not only does the Court cast to one side our finality-era jurisprudence, it skims over recent habeas precedent. Per- haps that is because these undermine today’s deci- sion. Indeed, both INS v. St. and v. ush, instruct that eliminating judicial review of legal and constitutional ques- tions associated with executive detention, like the expe- dited-removal statute at issue here does, is unconstitu- tional. The Court acknowledges St. ’s holding but does not heed it. St. concluded that “ ‘[b]ecause of [the Suspen- sion] Clause some “judicial intervention in deportation Cite as: 59 U. S. (2020) 3 SOTOMYOR, J., dissenting ” is unquestionably “required by the Constitution.” ’ ” nte, ( ). This statement af- firms what the finality-era long suggested: that the Suspension Clause limits Congress’ power to restrict judi- cial review in immigration Nor did St. arrive at this conclusion simply based on canons of statutory con- struction. The Court spoke of deeper historical principles, affirming repeatedly that “[a]t its historical core, the writ of habeas corpus has served as a means of reviewing the le- gality of Executive detention, and it is in that context that its protections have been strongest.” at 30; see also (“The writ of habeas corpus has always been available to review the legality of Executive detention”). The Court looked to founding era to establish that the scope of this guarantee extended to both the “interpreta- tion” and “application” of governing law, including law that guided the exercise of executive discretion. ased on that history, the Court also concluded that “a serious Suspension Clause issue would be presented” by precluding habeas review in the removal context, at 305, even where there was “no dispute” that the Govern- ment had the legal authority to detain a noncitizen like St. Thus based on the same principles that the Court purports to apply in this case, the St. Court reached the opposite conclusion: The Suspension Clause likely prevents Congress from eliminating judicial review of discretionary executive action in the deportation context, even when the writ is used to challenge more than the of detention itself. reprised many of the rules articulated in St. It first confirmed that the Suspension Clause applied to detainees held at ay, repeating the “un- controversial” proposition that “the privilege of habeas cor- pus entitles” an executive detainee to a “meaningful oppor- tunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law.” DEPRTMENT OF HOMELND SECURITY v. THURISSIGIM SOTOMYOR, J., dissenting ( St. ). Then the Court detailed the writ’s remedial scope. It affirmed that one of the “easily identified attributes of any constitu- tionally adequate habeas corpus proceeding” is that “the ha- beas court must have the power to order the conditional re- lease of an individual unlawfully detained.” 553 U.S., at 9. Notably, the Court explained that release “need not be the exclusive remedy,” reasoning that “common-law habeas corpus was, above all, an adaptable remedy” whose “precise application and scope changed depending upon the circum- stances.” (citing 3 W. lackstone, Commentaries *3). The Court noted that any habeas remedy might be tempered based on the traditional test for procedural ade- quacy in the due process context and thus could accommo- date the “rigor of any earlier proceedings.” 553 U.S., at 78 (citing 424 U.S. 39, (976)). The Court discounts these because it objects to the perceived direction of respondent’s requested release. nte, (explaining that did not suggest that the enemy combatant petitioners were entitled to enter the United States upon release). It similarly contends that re- spondent’s attempted use of the writ is “very different” from that at issue in St. nte, Neither rejoinder is sound. St. and con- firm that at minimum, the historic scope of the habeas power guaranteed judicial review of constitutional and le- gal challenges to executive action. They do not require re- lease as an exclusive remedy, let alone a particular direc- tion of release. Rather, both built on the legacy of the finality era where the Court, concerned about the constitu- tionality of limiting judicial review, unquestionably enter- tained habeas petitions from arriving migrants who raised the same types of questions respondent poses here. See, e.g., St. (citing United States ex rel. ccardi v. Shaughnessy, (954) (habeas case Cite as: 59 U. S. (2020) 33 SOTOMYOR, J., dissenting attacking the denial of an application for suspension of de- portation); see also (“[W]e object to the oard’s alleged failure to exercise its own discretion, contrary to ex- isting valid regulations” (emphasis deleted))). s discussed above, respondent requests review of immi- gration officials’ allegedly unlawful interpretation of gov- erning asylum law, and seeks to test the constitutional ad- equacy of expedited removal procedures. s a remedy, he requests procedures affording a conditional release, but cer- tainly did not so limit his prayer for relief. His constitu- tional and legal challenges fall within the heartland of what St. said the common-law writ encompassed, and confirms he is entitled to additional procedures as a form of conditional habeas relief. These precedents themselves resolve this case. * * * The Court wrongly declares that can preclude habeas review of respondent’s constitutional and legal chal- lenges to his asylum proceedings. So too the Court errs in concluding that Congress need not provide a substitute mechanism to supply that review. In so holding, the Court manages to flout precedents governing habeas jurispru- dence from three separate eras. Each one shows that re- spondent is entitled to judicial review of his constitutional and legal claims. ecause excludes his chal- lenges from habeas proceedings, and because the IN does not otherwise provide for meaningful judicial review of the Executive’s removal determination, respondent has no ef- fective means of vindicating his right to habeas relief. Quite simply, the Constitution requires more. III lthough the Court concludes that habeas relief is not available because of the particular kind of release that it 34 DEPRTMENT OF HOMELND SECURITY v. THURISSIGIM SOTOMYOR, J., dissenting thinks respondent requests, it also suggests that respond- ent’s unlawful status independently prohibits him from challenging the constitutionality of the expedited removal proceedings. y determining that respondent, a recent un- lawful entrant who was apprehended close in time and place to his unauthorized border crossing, has no proce- dural due process rights to vindicate through his habeas challenge, the Court unnecessarily addresses a constitu- tional question in a manner contrary to the text of the Con- stitution and to our precedents. The Court stretches to reach the issue whether a noncit- izen like respondent is entitled to due process protections in relation to removal proceedings, which the court below mentioned only in a footnote and as an aside. See ante, at 34 ( 97 F.3d, at n. 5). In so doing, the Court opines on a matter neither necessary to its holding nor se- riously in dispute below. The Court is no more correct on the merits. To be sure, our have long held that foreigners who had never come into the United States—those “on the threshold of in- itial entry”—are not entitled to any due process with re- spect to their admission. 22 (953) (citing 42 U.S., ); see also 459 U.S. 2, (982). That follows from this Courts’ holdings that the po- litical branches of Government have “plenary” sovereign power over regulating the admission of noncitizens to the United States. nte, at 35; see also 42 U.S., at 659. —————— While the Court contends that the writ of habeas corpus does not allow an individual to “obtain administrative review” or additional pro- cedures, it arrives at this conclusion only in the context of discussing what sorts of “relief ” properly qualified as release from custody at com- mon law. nte, at 2, 4–6 (contrasting request for additional remedies with a “simple” release from custody). To the extent that this discussion necessarily prohibits federal courts from entertaining habeas petitions alleging due process violations in expedited removal proceedings, the Court’s separate discussion in Part IV is unnecessary. Cite as: 59 U. S. (2020) 35 SOTOMYOR, J., dissenting Noncitizens in this country, however, undeniably have due process rights. In Yick 8 U.S. 356 (886), the Court explained that “[t]he Fourteenth mend- ment to the Constitution is not confined to the protection of citizens” but rather applies “to all persons within the terri- torial jurisdiction, without regard to any differences of race, of color, or of nationality.” ; (reiterating that “once an alien enters the country,” he is entitled to due process in his re- moval proceedings because “the Due Process Clause applies to all ‘persons’ within the United States, including aliens, whether their presence here is lawful, unlawful, temporary, or permanent”). In its early the Court speculated whether a noncit- izen could invoke due process protections when he entered the country without permission or had resided here for too brief a period to “have become, in any real sense, a part of our population.” The Japanese Immigrant Case, 89 U.S. 86, 00 ; see also ante, at 34 ( 42 U.S., (remarking that for those not “ ‘admitted into the country pursuant to law,’ ” the procedures afforded by the political branches are all that are due)). ut the Court has since determined that presence in the country is the touch- stone for at least some level of due process protections. See 345 U.S., at 22 (explaining that “aliens who have once passed through our gates, even illegally,” possess con- stitutional rights); (976) (“There are literally millions of aliens within the jurisdic- tion of the United States. The Fifth mendment pro- tects every one of these persons Even one whose pres- ence in this country is unlawful, involuntary, or transitory is entitled to that constitutional protection”). s a nonciti- zen within the territory of the United States, respondent is entitled to invoke the protections of the Due Process Clause. In order to reach a contrary conclusion, the Court as- sumes that those who do not enter the country legally have 36 DEPRTMENT OF HOMELND SECURITY v. THURISSIGIM SOTOMYOR, J., dissenting the same due process rights as those who do not enter the country at all. The Court deems that respondent possesses only the rights of noncitizens on the “threshold of initial en- try,” skirting binding precedent by assuming that individu- als like respondent have “ ‘assimilated to [the] status’ ” of an arriving noncitizen for purposes of the constitutional anal- ysis. 345 U.S., at 22, 24. ut that relies on a legal fiction. Respondent, of course, was actually within the ter- ritorial limits of the United States. More broadly, by drawing the line for due process at legal admission rather than physical entry, the Court tethers constitutional protections to a noncitizen’s legal status as determined under contemporary asylum and immigration law. ut the Fifth mendment, which of course long pre- dated any admissions program, does not contain limits based on immigration status or duration in the country: It applies to “persons” without qualification. Yick Wo, 8 U.S., The Court has repeatedly affirmed as much long after Congress began regulating entry to the country. 426 U.S., at ; 533 U.S., at –694. The Court lacks any textual basis to craft an exception to this rule, let alone one hinging on dynamic immigration laws that may be amended at any time, to redefine when an “entry” occurs. Fundamentally, it is out of step with how this Court has conceived the scope of the Due Process Clause for over a century: Congressional policy in the im- migration context does not dictate the scope of the Consti- tution. In addition to creating an atextual gap in the Constitu- tion’s coverage, the Court’s rule lacks any limiting princi- ple. This is not because our case law does not supply one. fter all, this Court has long affirmed that noncitizens have due process protections in proceedings to remove them from the country once they have entered. See at –694; 345 U.S., at 22. Cite as: 59 U. S. (2020) 37 SOTOMYOR, J., dissenting Perhaps recognizing the tension between its opinion to- day and those the Court cabins its holding to individ- uals who are “in respondent’s position.” nte, at 36. Pre- sumably the rule applies to—and only to—individuals found within 25 feet of the border who have entered within the past 24 hours of their apprehension. Where its logic must stop, however, is hard to say. Taken to its extreme, a rule conditioning due process rights on lawful entry would permit Congress to constitutionally eliminate all proce- dural protections for any noncitizen the Government deems unlawfully admitted and summarily deport them no matter how many decades they have lived here, how settled and integrated they are in their communities, or how many members of their family are U. S. citizens or residents. This judicially fashioned line-drawing is not administra- ble, threatens to create arbitrary divisions between noncit- izens in this country subject to removal proceedings, and, most important, lacks any basis in the Constitution. oth the Constitution and this Court’s plainly guarantee due process protections to all “persons” regardless of their immigration status, a guarantee independent of the whims of the political branches. This contrary proclamation by the Court unnecessarily decides a constitutional question in a manner contrary to governing law.2 IV The Court reaches its decision only by downplaying the —————— 2 The Court notes that noncitizens like respondent seeking legal ad- mission lack due process rights “ ‘regarding [their] application.’ ” nte, at 34 ( 459 U.S. 2, (982)). It does not, however, explain what kinds of challenges are related to one’s applica- tion and what kinds are not. Presumably a challenge to the length or conditions of confinement pending a hearing before an immigration judge falls outside that class of ecause respondent only sought prom- ised asylum procedures, however, today’s decision can extend no further than these claims for relief. 38 DEPRTMENT OF HOMELND SECURITY v. THURISSIGIM SOTOMYOR, J., dissenting nature of respondent’s claims, ignoring a plethora of com- mon-law immigration from a time of relatively open borders, and mischaracterizing the most relevant prece- dents from this Court. Perhaps to shore up this unstable foundation, the Court justifies its decision by pointing to perceived vulnerabilities and abuses in the asylum system. I address the Court’s policy concerns briefly. In some ways, this country’s asylum laws have repre- sented the best of our Nation. Unrestricted migration at the founding and later, formal asylum statutes, have served as a beacon to the world, broadcasting the vitality of our institutions and our collective potential. For many who come here fleeing religious, political, or ideological persecu- tion, and for many more who have preceded them, asylum has provided both a form of shelter and a start to a better life. That is not to say that this country’s asylum policy has always, or ever, had overwhelming support. Indeed, many times in our past, particularly when the Nation’s future has appeared uncertain or bleak, members of this country have sought to close our borders rather than open them. See S. Legomsky & C. Rodriguez, Immigration and Refugee Law and Policy 875–876 (5th ed. 2009) (explaining that restric- tionist sentiments in the 930s were fueled in part by the Great Depression). Yet this country has time and again re- affirmed its commitment to providing sanctuary to those es- caping oppression and persecution. Congress and the Ex- ecutive have repeatedly affirmed that choice in response to serial waves of migration from other countries by enacting and amending asylum laws and regulations. In a cen- terpiece of respondent’s claim is that officials were not fol- lowing these statutorily enacted procedures. The volume of asylum claims submitted, pending, and granted has varied over the years, due to ors like chang- ing international migration patterns, the level of resources devoted to processing and adjudicating asylum applica- tions, and amendments to governing immigration laws. See Cite as: 59 U. S. (2020) 39 SOTOMYOR, J., dissenting Congressional Research Service, Immigration: U. S. sy- lum Policy 25 (Feb. 9, 209); see also Dept. of Homeland Security, Office of Immigration Statistics, 208 Yearbook of Immigration Statistics 43 (209) (Table 6) (“Individuals Granted sylum ffirmatively or Defensively: Fiscal Years 990 to 208” (quotation modified)). For the past few years, both new asylum applications and pending applications have steadily increased. Immigration: U. S. sylum Policy, at 25. It is universally acknowledged that the asylum regime is under strain. It is also clear that, while the reasons for the large pending caseload are complicated,3 delays in adjudi- cations are undesirable for a number of reasons. t bottom, when asylum claims are not resolved in a timely fashion, the protracted decisionmaking harms those eligible for pro- tection and undermines the integrity of the regime as a whole. D. Meissner, F. Hipsman, & T. leinikoff, Migration Policy Institute, The U. S. sylum System in Crisis: Chart- ing a Way Forward 4 (Sept. 208). ut the political branches have numerous tools at their disposal to reform the asylum system, and debates over the best methods of doing so are legion in the Government, in the academy, and in the public sphere.4 Congress and the —————— 3 In 208 Senate Judiciary Committee hearings, the Director of the Executive Office of Immigration Review identified ors contributing to the backlog of including lengthy hiring times for new immigration judges and the continued use of paper files. See Testimony of James McHenry, Strengthening and Reforming merica’s Immigration Court System, Hearings before the Subcommittee on order Security and Im- migration of the Senate Committee on the Judiciary, 5th Cong., 2d Sess., 2 (208). The Court, meanwhile, insinuates that much of the bur- den on the asylum system can be attributed to frivolous or fraudulent asylum claims. See, e.g., ante, at 7–8, nn. 9 and 0. ut the magnitude of asylum fraud has long been debated. See S. Legomsky & C. Rodriguez, Immigration and Refugee Law and Policy 034 (5th ed. 2009); Immigra- tion: U. S. sylum Policy, at 28. 4 See, e.g., GO, Immigration Courts: ctions Needed To Reduce Case acklog and ddress Long-Standing Management and Operational 40 DEPRTMENT OF HOMELND SECURITY v. THURISSIGIM SOTOMYOR, J., dissenting Executive are thus well equipped to enact a range of measures to reform asylum in a number of ways and rou- tinely do so.5 Indeed, as the Court notes, the expedited re- moval process at issue here was created by law as one such measure to ease pressures on the immigration system. nte, at 4. In the face of these policy choices, the role of the Judiciary is minimal, yet crucial: to ensure that laws passed by Con- gress are consistent with the limits of the Constitution. The Court today ignores its obligation, going out of its way to restrict the scope of the Great Writ and the reach of the Due Process Clause. This may accommodate congressional pol- icy concerns by easing the burdens under which the immi- gration system currently labors. ut it is nothing short of a self-imposed injury to the Judiciary, to the separation of powers, and to the values embodied in the promise of the Great Writ. ecause I disagree with the Court’s interpretation of the reach of our Constitution’s protections, I respectfully dis- sent. —————— Challenges (GO–7–438, June 207); Uchimiya, lackstone’s Ratio for sylum: Fighting Fraud While Preserving Procedural Due Process for sylum Seekers, 26 Pa. St. Int’l L. Rev. 383 (2007); Martin, Reform- ing sylum djudication: On Navigating the Coast of ohemia, 38 U. Pa. L. Rev. 247 (990). 5 P. lvarez & G. Sands, Trump dministration Proposes Sweeping Changes to U. S. sylum System in New Rule, CNN, June 0, 2020 (online source archived at www.supremecourt.gov)

Justice O'Connor

majority

Lewis v. United States

1996-06-24

https://www.courtlistener.com/opinion/118053/lewis-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/118053/

1995-080

This case presents the question whether a defendant who is prosecuted in a single proceeding for multiple petty offenses has a constitutional right to a jury trial where the aggregate prison term authorized for the offenses exceeds six months. We are also asked to decide whether a defendant who would otherwise have a constitutional right to a jury trial may be denied that right because the presiding judge has made a pretrial commitment that the aggregate sentence imposed will not exceed six months. We conclude that no jury trial right exists where a defendant is prosecuted for multiple petty offenses. The Sixth *324 Amendment's guarantee of the right to a jury trial does not extend to petty offenses, and its scope does not change where a defendant faces a potential aggregate prison term in excess of six months for petty offenses charged. Because we decide that no jury trial right exists where a defendant is charged with multiple petty offenses, we do not reach the second question. I Petitioner Ray Lewis was a mail handler for the United States Postal Service. One day, postal inspectors saw him open several pieces of mail and pocket the contents. The next day, the inspectors routed "test" mail, containing marked currency, through petitioner's station. After seeing petitioner open the mail and remove the currency, the inspectors arrested him. Petitioner was charged with two counts of obstructing the mail, in violation of 18 U.S. C. § 1701. Each count carried a maximum authorized prison sentence of six months. Petitioner requested a jury, but the Magistrate Judge granted the Government's motion for a bench trial. She explained that because she would not, under any circumstances, sentence petitioner to more than six months' imprisonment, he was not entitled to a jury trial. Petitioner sought review of the denial of a jury trial, and the District Court affirmed. Petitioner appealed, and the Court of Appeals for the Second Circuit affirmed. 65 F.3d 252 (1995). The court noted that the Sixth Amendment jury trial right pertains only to serious offenses, that is, those for which the legislature has authorized a maximum penalty of over six months' imprisonment. The court then addressed the question whether a defendant facing more than six months' imprisonment in the aggregate for multiple petty offenses is nevertheless entitled to a jury trial. The Court of Appeals concluded that, for determination of the right to a jury trial, the proper focus is on the legislature's determination regarding the character of the offense, as indicated by maximum penalty authorized, not on the length of *325 the maximum aggregate sentence faced. Id., at 254-255. Because each offense charged here was petty in character, the court concluded that petitioner was not entitled to a jury trial. The court explained in dictum that because the character of the offense as petty or serious determined the right to a jury trial, not the sentence faced, a trial judge's self-imposed limitation on sentencing could not deprive a defendant of the right to a jury trial. Id., at 255-256. We granted certiorari, 516 U.S. 1088 (1996), to resolve a conflict in the Courts of Appeals over whether a defendant prosecuted in a single proceeding for multiple petty offenses has a constitutional right to a jury trial, where the aggregate sentence authorized for the offenses exceeds six months' imprisonment, and whether such jury trial right can be eliminated by a judge's pretrial commitment that the aggregate sentence imposed will not exceed six months. See United States v. Coppins, 953 F.2d 86 (CA4 1991); United States v. Bencheck, 926 F.2d 1512 (CA10 1991); Rife v. Godbehere, 814 F.2d 563 (CA9 1987). II The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . ." It is well established that the Sixth Amendment, like the common law, reserves this jury trial right for prosecutions of serious offenses, and that "there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision." Duncan v. Louisiana, 391 U.S. 145, 159 (1968). To determine whether an offense is properly characterized as "petty," courts at one time looked to the nature of the offense and whether it was triable by a jury at common law. Such determinations became difficult, because many statutory offenses lack common-law antecedents. Blanton v. *326 North Las Vegas, 489 U.S. 538, 541, and n. 5 (1989). Therefore, more recently, we have instead sought "objective indications of the seriousness with which society regards the offense." Frank v. United States, 395 U.S. 147, 148 (1969); accord, District of Columbia v. Clawans, 300 U.S. 617, 628 (1937). Now, to determine whether an offense is petty, we consider the maximum penalty attached to the offense. This criterion is considered the most relevant with which to assess the character of an offense, because it reveals the legislature's judgment about the offense's severity. "The judiciary should not substitute its judgment as to seriousness for that of a legislature, which is far better equipped to perform the task . . . ." Blanton, 489 U. S., at 541 (internal quotation marks omitted). In evaluating the seriousness of the offense, we place primary emphasis on the maximum prison term authorized. While penalties such as probation or a fine may infringe on a defendant's freedom, the deprivation of liberty imposed by imprisonment makes that penalty the best indicator of whether the legislature considered an offense to be "petty" or "serious." Id., at 542. An offense carrying a maximum prison term of six months or less is presumed petty, unless the legislature has authorized additional statutory penalties so severe as to indicate that the legislature considered the offense serious. Id., at 543; Codispoti v. Pennsylvania, 418 U.S. 506, 512 (1974). Here, the maximum authorized penalty for obstruction of mail is six months' imprisonment—a penalty that presumptively places the offense in the "petty" category. We face the question whether petitioner is nevertheless entitled to a jury trial, because he was tried in a single proceeding for two counts of the petty offense so that the potential aggregated penalty is 12 months' imprisonment. Petitioner argues that, where a defendant is charged with multiple petty offenses in a single prosecution, the Sixth Amendment requires that the aggregate potential penalty be the basis for determining whether a jury trial is required. *327 Although each offense charged here was petty, petitioner faced a potential penalty of more than six months' imprisonment; and, of course, if any offense charged had authorized more than six months' imprisonment, he would have been entitled to a jury trial. The Court must look to the aggregate potential prison term to determine the existence of the jury trial right, petitioner contends, not to the "petty" character of the offenses charged. We disagree. The Sixth Amendment reserves the jury trial right to defendants accused of serious crimes. As set forth above, we determine whether an offense is serious by looking to the judgment of the legislature, primarily as expressed in the maximum authorized term of imprisonment. Here, by setting the maximum authorized prison term at six months, the Legislature categorized the offense of obstructing the mail as petty. The fact that petitioner was charged with two counts of a petty offense does not revise the legislative judgment as to the gravity of that particular offense, nor does it transform the petty offense into a serious one, to which the jury trial right would apply. We note that there is precedent at common law that a jury trial was not provided to a defendant charged with multiple petty offenses. See, e. g., Queen v. Matthews, 10 Mod. 26, 88 Eng. Rep. 609 (Q. B. 1712); King v. Swallow, 8 T. R. 285, 101 Eng. Rep. 1392 (K. B. 1799). Petitioner nevertheless insists that a defendant is entitled to a jury trial whenever he faces a deprivation of liberty for a period exceeding six months, a proposition for which he cites our precedent establishing the six-months' prison sentence as the presumptive cutoff for determining whether an offense is "petty" or "serious." To be sure, in the cases in which we sought to determine the line between "petty" and "serious" for Sixth Amendment purposes, we considered the severity of the authorized deprivation of liberty as an indicator of the legislature's appraisal of the offense. See Blanton, supra, at 542-543; Baldwin v. New York, 399 U.S. 66, *328 68-69 (1970) (plurality opinion). But it is now settled that a legislature's determination that an offense carries a maximum prison term of six months or less indicates its view that an offense is "petty." Blanton, supra, at 543. Where we have a judgment by the legislature that an offense is "petty," we do not look to the potential prison term faced by a particular defendant who is charged with more than one such petty offense. The maximum authorized penalty provides an "objective indicatio[n] of the seriousness with which society regards the offense," Frank, 395 U. S., at 148, and it is that indication that is used to determine whether a jury trial is required, not the particularities of an individual case. Here, the penalty authorized by Congress manifests its judgment that the offense is petty, and the term of imprisonment faced by petitioner by virtue of the second count does not alter that fact. Petitioner directs our attention to Codispoti for support for the assertion that the "aggregation of multiple petty offenses renders a prosecution serious for jury trial purposes." Brief for Petitioner 18. Codispoti is inapposite. There, defendants were each convicted at a single, nonjury trial for several charges of criminal contempt. The Court was unable to determine the legislature's judgment of the character of that offense, however, because the legislature had not set a specific penalty for criminal contempt. In such a situation, where the legislature has not specified a maximum penalty, courts use the severity of the penalty actually imposed as the measure of the character of the particular offense. Codispoti, supra, at 511; Frank, supra, at 149. Here, in contrast, we need not look to the punishment actually imposed, because we are able to discern Congress' judgment of the character of the offense. Furthermore, Codispoti emphasized the special concerns raised by the criminal contempt context. Contempt "often strikes at the most vulnerable and human qualities of a judge's temperament. Even where the contempt is not a direct *329 insult to the court . . . it frequently represents a rejection of judicial authority, or an interference with the judicial process . .. ." Codispoti, 418 U. S., at 516 (internal quotation marks omitted); see also Mayberry v. Pennsylvania, 400 U.S. 455, 465-466 (1971). In the face of courtroom disruption, a judge may have difficulty maintaining the detachment necessary for fair adjudication; at the same time, it is a judge who "determines which and how many acts of contempt the citation will cover," "determine[s] guilt or innocence absent a jury," and "impose[s] the sentence." Codispoti, 418 U. S., at 515. Therefore, Codispoti concluded that the concentration of power in the judge in the often heated contempt context presented the "very likelihood of arbitrary action that the requirement of jury trial was intended to avoid or alleviate." Ibid. The benefit of a jury trial, "`as a protection against the arbitrary exercise of official power,' " was deemed particularly important in that context. Id., at 516 (quoting Bloom v. Illinois, 391 U.S. 194, 202 (1968)). The absence of a legislative judgment about the offense's seriousness, coupled with the unique concerns presented in a criminal contempt case, persuaded us in Codispoti that, in those circumstances, the jury trial right should be determined by the aggregate penalties actually imposed. Codispoti was held to be entitled to a jury trial, because the sentence actually imposed on him for criminal contempt exceeded six months. By comparison, in Taylor v. Hayes, 418 U.S. 488 (1974), which similarly involved a defendant convicted of criminal contempt in a jurisdiction where the legislature had not specified a penalty, we determined that the defendant was not entitled to a jury trial, because the sentence actually imposed for criminal contempt did not exceed six months. Contrary to Justice Kennedy's argument, see post, at 331-334, 338, Codispoti and Taylor do not stand for the sweeping proposition that, outside their narrow context, the jury trial right is determined by the aggregate penalties faced by a defendant. *330 Certainly the aggregate potential penalty faced by petitioner is of serious importance to him. But to determine whether an offense is serious for Sixth Amendment purposes, we look to the legislature's judgment, as evidenced by the maximum penalty authorized. Where the offenses charged are petty, and the deprivation of liberty exceeds six months only as a result of the aggregation of charges, the jury trial right does not apply. As petitioner acknowledges, even if he were to prevail, the Government could properly circumvent the jury trial right by charging the counts in separate informations and trying them separately. The Constitution's guarantee of the right to a jury trial extends only to serious offenses, and petitioner was not charged with a serious offense. That he was tried for two counts of a petty offense, and therefore faced an aggregate potential term of imprisonment of more than six months, does not change the fact that the Legislature deemed this offense petty. Petitioner is not entitled to a jury trial. Because petitioner is not entitled to a jury trial, we need not reach the question whether a judge's self-imposed limitation on sentencing may affect the jury trial right. The judgment of the Court of Appeals for the Second Circuit is affirmed. It is so ordered. Justice Kennedy, with whom Justice Breyer joins, concurring in the judgment.

This case presents the question whether a defendant who is prosecuted in a single proceeding for multiple petty offenses has a constitutional right to a jury trial where the aggregate prison term authorized for the offenses exceeds six months. We are also asked to decide whether a defendant who would otherwise have a constitutional right to a jury trial may be denied that right because the presiding judge has made a pretrial commitment that the aggregate sentence imposed will not exceed six months. We conclude that no jury trial right exists where a defendant is prosecuted for multiple petty offenses. The Sixth *324 Amendment's guarantee of the right to a jury trial does not extend to petty offenses, and its scope does not change where a defendant faces a potential aggregate prison term in excess of six months for petty offenses charged. Because we decide that no jury trial right exists where a defendant is charged with multiple petty offenses, we do not reach the second question. I Petitioner Ray Lewis was a mail handler for the United States Postal Service. One day, postal inspectors saw him open several pieces of mail and pocket the contents. The next day, the inspectors routed "test" mail, containing marked currency, through petitioner's station. After seeing petitioner open the mail and remove the currency, the inspectors arrested him. Petitioner was charged with two counts of obstructing the mail, in violation of 18 U.S. C. 1701. Each count carried a maximum authorized prison sentence of six months. Petitioner requested a jury, but the Magistrate Judge granted the Government's motion for a bench trial. She explained that because she would not, under any circumstances, sentence petitioner to more than six months' imprisonment, he was not entitled to a jury trial. Petitioner sought review of the denial of a jury trial, and the District Court affirmed. Petitioner appealed, and the Court of Appeals for the Second Circuit affirmed. The court noted that the Sixth Amendment jury trial right pertains only to serious offenses, that is, those for which the legislature has authorized a maximum penalty of over six months' imprisonment. The court then addressed the question whether a defendant facing more than six months' imprisonment in the aggregate for multiple petty offenses is nevertheless entitled to a jury trial. The Court of Appeals concluded that, for determination of the right to a jury trial, the proper focus is on the legislature's determination regarding the character of the offense, as indicated by maximum penalty authorized, not on the length of *325 the maximum aggregate sentence faced. Because each offense charged here was petty in character, the court concluded that petitioner was not entitled to a jury trial. The court explained in dictum that because the character of the offense as petty or serious determined the right to a jury trial, not the sentence faced, a trial judge's self-imposed limitation on sentencing could not deprive a defendant of the right to a jury trial. We granted certiorari, to resolve a conflict in the Courts of Appeals over whether a defendant prosecuted in a single proceeding for multiple petty offenses has a constitutional right to a jury trial, where the aggregate sentence authorized for the offenses exceeds six months' imprisonment, and whether such jury trial right can be eliminated by a judge's pretrial commitment that the aggregate sentence imposed will not exceed six months. See United ; United ; II The Sixth Amendment guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed" It is well established that the Sixth Amendment, like the common law, reserves this jury trial right for prosecutions of serious offenses, and that "there is a category of petty crimes or offenses which is not subject to the Sixth Amendment jury trial provision." To determine whether an offense is properly characterized as "petty," courts at one time looked to the nature of the offense and whether it was triable by a jury at common law. Such determinations became difficult, because many statutory offenses lack common-law antecedents. Therefore, more recently, we have instead sought "objective indications of the seriousness with which society regards the offense." ; accord, District of Now, to determine whether an offense is petty, we consider the maximum penalty attached to the offense. This criterion is considered the most relevant with which to assess the character of an offense, because it reveals the legislature's judgment about the offense's severity. "The judiciary should not substitute its judgment as to seriousness for that of a legislature, which is far better equipped to perform the task" 489 U. S., at In evaluating the seriousness of the offense, we place primary emphasis on the maximum prison term authorized. While penalties such as probation or a fine may infringe on a defendant's freedom, the deprivation of liberty imposed by imprisonment makes that penalty the best indicator of whether the legislature considered an offense to be "petty" or "serious." An offense carrying a maximum prison term of six months or less is presumed petty, unless the legislature has authorized additional statutory penalties so severe as to indicate that the legislature considered the offense serious. ; Here, the maximum authorized penalty for obstruction of mail is six months' imprisonment—a penalty that presumptively places the offense in the "petty" category. We face the question whether petitioner is nevertheless entitled to a jury trial, because he was tried in a single proceeding for two counts of the petty offense so that the potential aggregated penalty is 12 months' imprisonment. Petitioner argues that, where a defendant is charged with multiple petty offenses in a single prosecution, the Sixth Amendment requires that the aggregate potential penalty be the basis for determining whether a jury trial is required. *327 Although each offense charged here was petty, petitioner faced a potential penalty of more than six months' imprisonment; and, of course, if any offense charged had authorized more than six months' imprisonment, he would have been entitled to a jury trial. The Court must look to the aggregate potential prison term to determine the existence of the jury trial right, petitioner contends, not to the "petty" character of the offenses charged. We disagree. The Sixth Amendment reserves the jury trial right to defendants accused of serious crimes. As set forth above, we determine whether an offense is serious by looking to the judgment of the legislature, primarily as expressed in the maximum authorized term of imprisonment. Here, by setting the maximum authorized prison term at six months, the Legislature categorized the offense of obstructing the mail as petty. The fact that petitioner was charged with two counts of a petty offense does not revise the legislative judgment as to the gravity of that particular offense, nor does it transform the petty offense into a serious one, to which the jury trial right would apply. We note that there is precedent at common law that a jury trial was not provided to a defendant charged with multiple petty offenses. See, e. g., Queen v. Matthews, 10 Mod. 26, 88 Eng. Rep. 609 (Q. B. 1712); King v. Swallow, 8 T. R. 285, 101 Eng. Rep. 1392 (K. B. 1799). Petitioner nevertheless insists that a defendant is entitled to a jury trial whenever he faces a deprivation of liberty for a period exceeding six months, a proposition for which he cites our precedent establishing the six-months' prison sentence as the presumptive cutoff for determining whether an offense is "petty" or "serious." To be sure, in the cases in which we sought to determine the line between "petty" and "serious" for Sixth Amendment purposes, we considered the severity of the authorized deprivation of liberty as an indicator of the legislature's appraisal of the offense. See -543; But it is now settled that a legislature's determination that an offense carries a maximum prison term of six months or less indicates its view that an offense is "petty." Where we have a judgment by the legislature that an offense is "petty," we do not look to the potential prison term faced by a particular defendant who is charged with more than one such petty offense. The maximum authorized penalty provides an "objective indicatio[n] of the seriousness with which society regards the offense," 395 U. S., at and it is that indication that is used to determine whether a jury trial is required, not the particularities of an individual case. Here, the penalty authorized by Congress manifests its judgment that the offense is petty, and the term of imprisonment faced by petitioner by virtue of the second count does not alter that fact. Petitioner directs our attention to for support for the assertion that the "aggregation of multiple petty offenses renders a prosecution serious for jury trial purposes." Brief for Petitioner 18. is inapposite. There, defendants were each convicted at a single, nonjury trial for several charges of criminal contempt. The Court was unable to determine the legislature's judgment of the character of that offense, however, because the legislature had not set a specific penalty for criminal contempt. In such a situation, where the legislature has not specified a maximum penalty, courts use the severity of the penalty actually imposed as the measure of the character of the particular offense. ; Here, in contrast, we need not look to the punishment actually imposed, because we are able to discern Congress' judgment of the character of the offense. Furthermore, emphasized the special concerns raised by the criminal contempt context. Contempt "often strikes at the most vulnerable and human qualities of a judge's temperament. Even where the contempt is not a direct *329 insult to the court it frequently represents a rejection of judicial authority, or an interference with the judicial process" ; see also In the face of courtroom disruption, a judge may have difficulty maintaining the detachment necessary for fair adjudication; at the same time, it is a judge who "determines which and how many acts of contempt the citation will cover," "determine[s] guilt or innocence absent a jury," and "impose[s] the sentence." Therefore, concluded that the concentration of power in the judge in the often heated contempt context presented the "very likelihood of arbitrary action that the requirement of jury trial was intended to avoid or alleviate." The benefit of a jury trial, "`as a protection against the arbitrary exercise of official power,' " was deemed particularly important in that context. ). The absence of a legislative judgment about the offense's seriousness, coupled with the unique concerns presented in a criminal contempt case, persuaded us in that, in those circumstances, the jury trial right should be determined by the aggregate penalties actually imposed. was held to be entitled to a jury trial, because the sentence actually imposed on him for criminal contempt exceeded six months. By comparison, in which similarly involved a defendant convicted of criminal contempt in a jurisdiction where the legislature had not specified a penalty, we determined that the defendant was not entitled to a jury trial, because the sentence actually imposed for criminal contempt did not exceed six months. Contrary to Justice Kennedy's argument, see post, at 331-334, 338, and Taylor do not stand for the sweeping proposition that, outside their narrow context, the jury trial right is determined by the aggregate penalties faced by a defendant. *330 Certainly the aggregate potential penalty faced by petitioner is of serious importance to him. But to determine whether an offense is serious for Sixth Amendment purposes, we look to the legislature's judgment, as evidenced by the maximum penalty authorized. Where the offenses charged are petty, and the deprivation of liberty exceeds six months only as a result of the aggregation of charges, the jury trial right does not apply. As petitioner acknowledges, even if he were to prevail, the Government could properly circumvent the jury trial right by charging the counts in separate informations and trying them separately. The Constitution's guarantee of the right to a jury trial extends only to serious offenses, and petitioner was not charged with a serious offense. That he was tried for two counts of a petty offense, and therefore faced an aggregate potential term of imprisonment of more than six months, does not change the fact that the Legislature deemed this offense petty. Petitioner is not entitled to a jury trial. Because petitioner is not entitled to a jury trial, we need not reach the question whether a judge's self-imposed limitation on sentencing may affect the jury trial right. The judgment of the Court of Appeals for the Second Circuit is affirmed. It is so ordered. Justice Kennedy, with whom Justice Breyer joins, concurring in the judgment.

Justice Kennedy

concurring

Lewis v. United States

1996-06-24

https://www.courtlistener.com/opinion/118053/lewis-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/118053/

1995-080

This petitioner had no constitutional right to a jury trial because from the outset it was settled that he could be sentenced to no more than six months' imprisonment for his combined petty offenses. The particular outcome, however, should not obscure the greater consequence of today's unfortunate decision. The Court holds that a criminal defendant may be convicted of innumerable offenses in one proceeding and sentenced to any number of years' imprisonment, all without benefit of a jury trial, so long as no one of the *331 offenses considered alone is punishable by more than six months in prison. The holding both in its doctrinal formulation and in its practical effect is one of the most serious incursions on the right to jury trial in the Court's history, and it cannot be squared with our precedents. The Sixth Amendment guarantees a jury trial to a defendant charged with a serious crime. Duncan v. Louisiana, 391 U.S. 145, 159 (1968). Serious crimes, for purposes of the Sixth Amendment, are defined to include any offense which carries a maximum penalty of more than six months in prison; the right to jury trial attaches to those crimes regardless of the sentence in fact imposed. Id., at 159-160. This doctrine is not questioned here, but it does not define the outer limits of the right to trial by jury. Our cases establish a further proposition: The right to jury trial extends as well to a defendant who is sentenced in one proceeding to more than six months' imprisonment. Codispoti v. Pennsylvania, 418 U.S. 506 (1974); Taylor v. Hayes, 418 U.S. 488 (1974). To be more specific, a defendant is entitled to a jury if tried in a single proceeding for more than one petty offense when the combined sentences will exceed six months' imprisonment; taken together, the crimes then are considered serious for constitutional purposes, even if each is petty by itself, Codispoti v. Pennsylvania, supra, at 517. The defendants in Codispoti and Taylor had been convicted of criminal contempt without juries in States where the legislatures had not set a maximum penalty for the crime. Taylor was convicted of nine separate contempts and sentenced to six months in prison. The Court held he was not entitled to a jury trial. Since the total sentence was only six months' imprisonment, the "eight contempts, whether considered singly or collectively, thus constituted petty offenses, and trial by jury was not required." Taylor v. Hayes, supra, at 496. Codispoti, by contrast, was convicted of seven contempts, and he was sentenced to six terms of six months' imprisonment and one term of three months' *332 imprisonment, each to run consecutively—a total of 39 months. We held he was entitled to a trial by jury because his aggregate sentence exceeded six months. In Codispoti, Pennsylvania made the same argument the United States makes today. It said no jury trial is required if the maximum punishment for each offense does not exceed six months in prison. We rejected the claim, saying: "Here the contempts . . . were tried seriatim in one proceeding, and the trial judge not only imposed a separate sentence for each contempt but also determined that the individual sentences were to run consecutively rather than concurrently, a ruling which necessarily extended the prison term to be served beyond that allowable for a petty criminal offense. As a result of this single proceeding, Codispoti was sentenced to three years and three months for his seven contemptuous acts . . . . In terms of the sentence imposed, which was obviously several times more than six months, [Codispoti] was tried for what was equivalent to a serious offense and was entitled to a jury trial. "We find unavailing respondent's contrary argument that [Codispoti's] contempts were separate offenses and that, because no more than a six months' sentence was imposed for any single offense, each contempt was necessarily a petty offense triable without a jury. Notwithstanding respondent's characterization of the proceeding, the salient fact remains that the contempts arose from a single trial, were charged by a single judge, and were tried in a single proceeding. The individual sentences imposed were then aggregated, one sentence taking account of the others and not beginning until the immediately preceding sentence had expired." Codis- poti v. Pennsylvania, supra, at 516-517. The reasons the Court offers to distinguish these cases are not convincing. The Court first suggests Codispoti `s holding *333 turned on the absence of a statutory maximum sentence for criminal contempt. Ante, at 328. The absence of a statutory maximum sentence, however, has nothing whatever to do with whether a court must aggregate the penalties that are in fact imposed for each crime. Indeed, we know the open-ended penalty to which Codispoti was subject was not the reason he was entitled a jury trial because Taylor, decided the same day, held that a defendant who was subject to the same kind of open-ended sentencing was not entitled to trial by jury because the sentence he received did not in fact exceed six months. Taken together, Codispoti and Taylor stand for the proposition the Court now rejects: Sentences for petty offenses must be aggregated in determining whether a defendant is entitled to a jury trial. Cf. State v. McCarroll, 337 So. 2d 475, 480 (La. 1976) (concluding Codispoti compelled it to overrule Monroe v. Wilhite, 233 So. 2d 535 (La.), cert. denied, 400 U.S. 910 (1970), which had held the Sixth Amendment did not require aggregation of penalties for petty offenses to determine whether a defendant is entitled to a jury trial). The Court next suggests Codispoti `s holding was based on "the special concerns raised by the criminal contempt context." Ante, at 328. The Codispoti Court was indeed cognizant of the need "to maintain order in the courtroom and the integrity of the trial process," 418 U.S., at 513, and so approved summary conviction and sentencing for criminal contempt, "where the necessity of circumstances warrants," id., at 514. The Court made clear that under those circumstances, a judge may sentence a defendant to more than six months' imprisonment for more than one contempt without empaneling a jury. Id., at 514-515. The Court went on to hold, however, that when the judge postpones the contempt trial until after the immediate proceedings have concluded, the "ordinary rudiments of due process" apply. Id., at 515. The "ordinary" rule required aggregation of penalties, *334 and because Codispoti's aggregated penalties exceeded six months' imprisonment, entitled him to a jury trial. In authorizing retroactive consideration of the punishment a defendant receives, the holdings of Codispoti and Taylor must not be confused with the line of cases entitling a defendant to a jury trial if he is charged with a crime punishable by more than six months' imprisonment, regardless of the sentence he in fact receives. The two lines of cases are consistent. Crimes punishable by sentences of more than six months are deemed by the community's social and ethical judgments to be serious. See District of Columbia v. Clawans, 300 U.S. 617, 628 (1937). Opprobrium attaches to conviction of those crimes regardless of the length of the actual sentence imposed, and the stigma itself is enough to entitle the defendant to a jury. See J. Proffatt, Trial by Jury 149 (1877) (jury trial cannot be denied to a defendant subject to "punishment which would render him infamous [or] affix to him the ignominy of a criminal"). This rationale does not entitle a defendant to trial by jury if he is charged only with petty offenses; even if they could result in a long sentence when taken together, convictions for petty offenses do not carry the same stigma as convictions for serious crimes. The imposition of stigma, however, is not the only or even the primary consequence a jury trial serves to constrain. As Codispoti recognizes, and as ought to be evident, the Sixth Amendment also serves the different and more practical purpose of preventing a court from effecting a most serious deprivation of liberty—ordering a defendant to prison for a substantial period of time—without the government's persuading a jury he belongs there. A deprivation of liberty so significant may be exacted if a defendant faces punishment for a series of crimes, each of which can be punished by no more than six months' imprisonment. The stakes for a defendant may then amount in the aggregate to many years in prison, in which case he must be entitled to interpose a jury between himself and the government. If the trial court *335 rules at the outset that no more than six months' imprisonment will be imposed for the combined petty offenses, however, the liberty the jury serves to protect will not be endangered, and there is no corresponding right to jury trial. Although Codispoti and Taylor are binding precedents, my conclusion rests also on a more fundamental point, one the Court refuses to confront: The primary purpose of the jury in our legal system is to stand between the accused and the powers of the State. Among the most ominous of those is the power to imprison. Blackstone expressed this principle when he described the right to trial by jury as a "strong. . . barrier . . . between the liberties of the people and the prerogative of the crown." 4 W. Blackstone, Commentaries *349-*350. See also W. Forsyth, History of Trial by Jury 426 (1852) ("[I]t would be difficult to conceive a better security than this right affords against any exercise of arbitrary violence on the part of the crown or a government acting in the name of the crown. No matter how ardent may be its wish to destroy or crush an obnoxious opponent, there can be no real danger from its menaces or acts so long as the party attacked can take refuge in a jury fairly and indifferently chosen"). In more recent times we have said the right to jury trial "reflect[s] a profound judgment about the way in which law should be enforced and justice administered." Duncan v. Louisiana, 391 U. S., at 155. Providing a defendant with the right to be tried by a jury gives "him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge." Id., at 156. These considerations all are present when a judge in a single case sends a defendant to prison for years, whether the sentence is the result of one serious offense or several petty offenses. On the Court's view of the case, however, there is no limit to the length of the sentence a judge can impose on a defendant without entitling him to a jury, so long as the prosecutor *336 carves up the charges into segments punishable by no more than six months apiece. Prosecutors have broad discretion in framing charges, see Ball v. United States, 470 U.S. 856, 859 (1985), for criminal conduct often does not arrange itself in neat categories. In many cases, a prosecutor can choose to charge a defendant with multiple petty offenses rather than a single serious offense, and so prevent him under today's holding from obtaining a trial by jury while still obtaining the same punishment. Cf. People v. Estevez, 163 Misc. 2d 839, 847, 622 N. Y. S. 2d 870, 876 (Crim. Ct. 1995) ("The People cannot have it both ways. They cannot in good faith seek consolidation of several B misdemeanors, which have been reduced from Class A misdemeanors, and then after conviction of more than two offenses seek consecutive sentences which would expose the defendant to over six months' imprisonment while at the same time deny the defendant the right to a jury trial"). The Court does not aid its position when it notes, with seeming approval, the Government's troubling suggestion that a committed prosecutor could evade the rule here proposed by bringing a series of prosecutions in separate proceedings, each for an offense punishable by no more than six months in prison. Ante, at 330. Were a prosecutor to take so serious a view of a defendant's conduct as to justify the burden of separate prosecutions, I should think the case an urgent example of when a jury is most needed if the offenses are consolidated. And if a defendant is subject to repeated bench trials because of a prosecutor's scheme to confine him in jail for years without benefit of a jury trial, at least he will be provided certain safeguards as a result. The prosecution's witnesses, and its theory of the case, will be tested more than once; the defendant will have repeated opportunities to convince the judge, or more than one judge, on the merits; and quite apart from questions of included offenses, the government may be barred by collateral estoppel if a fact is found in favor of the defendant and is dispositive *337 in later trials, see Ashe v. Swenson, 397 U.S. 436 (1970). Finally, the prosecutor will have to justify, at least to the voters, this peculiar exercise of discretion. In short, if a prosecutor seeks to achieve a result forbidden in one trial by the expedient of pursuing many, the process itself will constrain the prosecutor and protect the defendant in important ways. The Court's holding, of course, makes it easier rather than more difficult for a government to evade the constraints of the Sixth Amendment when it seeks to lock up a defendant for a long time. The significance of the Court's decision quite transcends the peculations of Ray Lewis, the petitioner here, who twice filched from the mails. The decision affects more than repeat violators of traffic laws, persons accused of public drunkenness, persons who persist in breaches of the peace, and the wide range of eccentrics capable of disturbing the quiet enjoyment of life by others. Just as alarming is the threat the Court's holding poses to millions of persons in agriculture, manufacturing, and trade who must comply with minute administrative regulations, many of them carrying a jail term of six months or less. Violations of these sorts of rules often involve repeated, discrete acts which can result in potential liability of years of imprisonment. See, e. g., 16 U.S. C. § 707 (violation of migratory bird treaties, laws, and regulations); 29 U.S. C. § 216 (penalties under Fair Labor Standards Act); 36 CFR § 1.3 (1995) (violation of National Park Service regulations); id., § 261.1b (violation of Forest Service prohibitions); id., § 327.25 (violation of Army Corps of Engineers water resource development project regulations); 43 CFR § 8351.1-1(b) (1995) (violation of Bureau of Land management regulations under National Trails System Act of 1968). Still, under the Court's holding it makes no difference whether a defendant is sentenced to a year in prison or for that matter to 20 years: As long as no single violation charged is punishable by more than six months, the defendant has no right to a jury. *338 The petitioner errs in the opposite direction. He argues a defendant is entitled to a jury trial whenever the penalties for the crimes charged combine to exceed six months' imprisonment, even if the trial judge rules that no more than six months' imprisonment will be imposed. We rejected this position in Taylor, however, and rightly so. A defendant charged with multiple petty offenses does not face the societal disapprobation attaching to conviction of a serious crime, and, so long as the trial judge rules at the outset that no more than six months' imprisonment will be imposed, the defendant does not face a serious deprivation of liberty. A judge who so rules is not withdrawing from a defendant a constitutional right to which he is entitled, as petitioner claims; the defendant is not entitled to the right to begin with if there is no potential for more than six months' imprisonment. The judge's statement has no independent force but only clarifies what would have been the law in its absence. Codispoti holds that a judge cannot impose a sentence exceeding six months' imprisonment for multiple petty offenses without conducting a jury trial, regardless of whether the judge announces that fact from bench. Amici in support of petitioner say it is inappropriate for judges to make these kinds of sentencing decisions before trial. The Court approved just this practice, however, in Scott v. Illinois, 440 U.S. 367 (1979), holding the Sixth Amendment does not require a judge to appoint counsel for a criminal defendant in a misdemeanor case if the judge will not sentence the defendant to any jail time. So too, Federal Rule of Criminal Procedure 58(a)(2) authorizes district courts not to apply the Federal Rules of Criminal Procedure in petty offense prosecutions for which no sentence of imprisonment will be imposed. The rules contemplate the determination being made before trial. Fed. Rule Crim. Proc. 58(a)(3). Petitioner's proposal would impose an enormous burden on an already beleaguered criminal justice system by increasing *339 to a dramatic extent the number of required jury trials. There are thousands of instances where minor offenses are tried before a judge, and we would err on the other side of sensible interpretation were we to hold that combining petty offenses in a single proceeding mandates a jury trial even when all possibility for a sentence longer than six months has been foreclosed. * * * When a defendant's liberty is put at great risk in a trial, he is entitled to have the trial conducted to a jury. This principle lies at the heart of the Sixth Amendment. The Court does grave injury to the Amendment by allowing a defendant to suffer a prison term of any length after a single trial before a single judge and without the protection of a jury. I join only the Court's judgment.

This petitioner had no constitutional right to a jury trial because from the outset it was settled that he could be sentenced to no more than six months' imprisonment for his combined petty offenses. The particular outcome, however, should not obscure the greater consequence of today's unfortunate decision. The Court holds that a criminal defendant may be convicted of innumerable offenses in one proceeding and sentenced to any number of years' imprisonment, all without benefit of a jury trial, so long as no one of the *331 offenses considered alone is punishable by more than six months in prison. The holding both in its doctrinal formulation and in its practical effect is one of the most serious incursions on the right to jury trial in the Court's history, and it cannot be squared with our precedents. The Sixth Amendment guarantees a jury trial to a defendant charged with a serious crime. Serious crimes, for purposes of the Sixth Amendment, are defined to include any offense which carries a maximum penalty of more than six months in prison; the right to jury trial attaches to those crimes regardless of the sentence in fact imposed. at -160. This doctrine is not questioned here, but it does not define the outer limits of the right to trial by jury. Our cases establish a further proposition: The right to jury trial extends as well to a defendant who is sentenced in one proceeding to more than six months' imprisonment. ; To be more specific, a defendant is entitled to a jury if tried in a single proceeding for more than one petty offense when the combined sentences will exceed six months' imprisonment; taken together, the crimes then are considered serious for constitutional purposes, even if each is petty by itself, The defendants in Codispoti and Taylor had been convicted of criminal contempt without juries in States where the legislatures had not set a maximum penalty for the crime. Taylor was convicted of nine separate contempts and sentenced to six months in prison. The Court held he was not entitled to a jury trial. Since the total sentence was only six months' imprisonment, the "eight contempts, whether considered singly or collectively, thus constituted petty offenses, and trial by jury was not required." Codispoti, by contrast, was convicted of seven contempts, and he was sentenced to six terms of six months' imprisonment and one term of three months' *332 imprisonment, each to run consecutively—a total of 39 months. We held he was entitled to a trial by jury because his aggregate sentence exceeded six months. In Codispoti, made the same argument the United States makes today. It said no jury trial is required if the maximum punishment for each offense does not exceed six months in prison. We rejected the claim, saying: "Here the contempts were tried seriatim in one proceeding, and the trial judge not only imposed a separate sentence for each contempt but also determined that the individual sentences were to run consecutively rather than concurrently, a ruling which necessarily extended the prison term to be served beyond that allowable for a petty criminal offense. As a result of this single proceeding, Codispoti was sentenced to three years and three months for his seven contemptuous acts In terms of the sentence imposed, which was obviously several times more than six months, [Codispoti] was tried for what was equivalent to a serious offense and was entitled to a jury trial. "We find unavailing respondent's contrary argument that [Codispoti's] contempts were separate offenses and that, because no more than a six months' sentence was imposed for any single offense, each contempt was necessarily a petty offense triable without a jury. Notwithstanding respondent's characterization of the proceeding, the salient fact remains that the contempts arose from a single trial, were charged by a single judge, and were tried in a single proceeding. The individual sentences imposed were then aggregated, one sentence taking account of the others and not beginning until the immediately preceding sentence had expired." Codis- poti v. The reasons the Court offers to distinguish these cases are not convincing. The Court first suggests Codispoti `s holding *333 turned on the absence of a statutory maximum sentence for criminal contempt. Ante, at 328. The absence of a statutory maximum sentence, however, has nothing whatever to do with whether a court must aggregate the penalties that are in fact imposed for each crime. Indeed, we know the open-ended penalty to which Codispoti was subject was not the reason he was entitled a jury trial because Taylor, decided the same day, held that a defendant who was subject to the same kind of open-ended sentencing was not entitled to trial by jury because the sentence he received did not in fact exceed six months. Taken together, Codispoti and Taylor stand for the proposition the Court now rejects: Sentences for petty offenses must be aggregated in determining whether a defendant is entitled to a jury trial. Cf. The Court next suggests Codispoti `s holding was based on "the special concerns raised by the criminal contempt context." Ante, at 328. The Codispoti Court was indeed cognizant of the need "to maintain order in the courtroom and the integrity of the trial process," and so approved summary conviction and sentencing for criminal contempt, "where the necessity of circumstances warrants," The Court made clear that under those circumstances, a judge may sentence a defendant to more than six months' imprisonment for more than one contempt without empaneling a jury. -515. The Court went on to hold, however, that when the judge postpones the contempt trial until after the immediate proceedings have concluded, the "ordinary rudiments of due process" apply. The "ordinary" rule required aggregation of penalties, *334 and because Codispoti's aggregated penalties exceeded six months' imprisonment, entitled him to a jury trial. In authorizing retroactive consideration of the punishment a defendant receives, the holdings of Codispoti and Taylor must not be confused with the line of cases entitling a defendant to a jury trial if he is charged with a crime punishable by more than six months' imprisonment, regardless of the sentence he in fact receives. The two lines of cases are consistent. Crimes punishable by sentences of more than six months are deemed by the community's social and ethical judgments to be serious. See District of Opprobrium attaches to conviction of those crimes regardless of the length of the actual sentence imposed, and the stigma itself is enough to entitle the defendant to a jury. See J. Proffatt, Trial by Jury 149 (1877) (jury trial cannot be denied to a defendant subject to "punishment which would render him infamous [or] affix to him the ignominy of a criminal"). This rationale does not entitle a defendant to trial by jury if he is charged only with petty offenses; even if they could result in a long sentence when taken together, convictions for petty offenses do not carry the same stigma as convictions for serious crimes. The imposition of stigma, however, is not the only or even the primary consequence a jury trial serves to constrain. As Codispoti recognizes, and as ought to be evident, the Sixth Amendment also serves the different and more practical purpose of preventing a court from effecting a most serious deprivation of liberty—ordering a defendant to prison for a substantial period of time—without the government's persuading a jury he belongs there. A deprivation of liberty so significant may be exacted if a defendant faces punishment for a series of crimes, each of which can be punished by no more than six months' imprisonment. The stakes for a defendant may then amount in the aggregate to many years in prison, in which case he must be entitled to interpose a jury between himself and the government. If the trial court *335 rules at the outset that no more than six months' imprisonment will be imposed for the combined petty offenses, however, the liberty the jury serves to protect will not be endangered, and there is no corresponding right to jury trial. Although Codispoti and Taylor are binding precedents, my conclusion rests also on a more fundamental point, one the Court refuses to confront: The primary purpose of the jury in our legal system is to stand between the accused and the powers of the State. Among the most ominous of those is the power to imprison. Blackstone expressed this principle when he described the right to trial by jury as a "strong. barrier between the liberties of the people and the prerogative of the crown." 4 W. Blackstone, Commentaries *349-*350. See also W. Forsyth, History of Trial by Jury 426 (1852) ("[I]t would be difficult to conceive a better security than this right affords against any exercise of arbitrary violence on the part of the crown or a government acting in the name of the crown. No matter how ardent may be its wish to destroy or crush an obnoxious opponent, there can be no real danger from its menaces or acts so long as the party attacked can take refuge in a jury fairly and indifferently chosen"). In more recent times we have said the right to jury trial "reflect[s] a profound judgment about the way in which law should be enforced and justice administered." Providing a defendant with the right to be tried by a jury gives "him an inestimable safeguard against the corrupt or overzealous prosecutor and against the compliant, biased, or eccentric judge." These considerations all are present when a judge in a single case sends a defendant to prison for years, whether the sentence is the result of one serious offense or several petty offenses. On the Court's view of the case, however, there is no limit to the length of the sentence a judge can impose on a defendant without entitling him to a jury, so long as the prosecutor *336 carves up the charges into segments punishable by no more than six months apiece. Prosecutors have broad discretion in framing charges, see for criminal conduct often does not arrange itself in neat categories. In many cases, a prosecutor can choose to charge a defendant with multiple petty offenses rather than a single serious offense, and so prevent him under today's holding from obtaining a trial by jury while still obtaining the same punishment. Cf. ("The People cannot have it both ways. They cannot in good faith seek consolidation of several B misdemeanors, which have been reduced from Class A misdemeanors, and then after conviction of more than two offenses seek consecutive sentences which would expose the defendant to over six months' imprisonment while at the same time deny the defendant the right to a jury trial"). The Court does not aid its position when it notes, with seeming approval, the Government's troubling suggestion that a committed prosecutor could evade the rule here proposed by bringing a series of prosecutions in separate proceedings, each for an offense punishable by no more than six months in prison. Ante, at 330. Were a prosecutor to take so serious a view of a defendant's conduct as to justify the burden of separate prosecutions, I should think the case an urgent example of when a jury is most needed if the offenses are consolidated. And if a defendant is subject to repeated bench trials because of a prosecutor's scheme to confine him in jail for years without benefit of a jury trial, at least he will be provided certain safeguards as a result. The prosecution's witnesses, and its theory of the case, will be tested more than once; the defendant will have repeated opportunities to convince the judge, or more than one judge, on the merits; and quite apart from questions of included offenses, the government may be barred by collateral estoppel if a fact is found in favor of the defendant and is dispositive *337 in later trials, see Finally, the prosecutor will have to justify, at least to the voters, this peculiar exercise of discretion. In short, if a prosecutor seeks to achieve a result forbidden in one trial by the expedient of pursuing many, the process itself will constrain the prosecutor and protect the defendant in important ways. The Court's holding, of course, makes it easier rather than more difficult for a government to evade the constraints of the Sixth Amendment when it seeks to lock up a defendant for a long time. The significance of the Court's decision quite transcends the peculations of Ray Lewis, the petitioner here, who twice filched from the mails. The decision affects more than repeat violators of traffic laws, persons accused of public drunkenness, persons who persist in breaches of the peace, and the wide range of eccentrics capable of disturbing the quiet enjoyment of life by others. Just as alarming is the threat the Court's holding poses to millions of persons in agriculture, manufacturing, and trade who must comply with minute administrative regulations, many of them carrying a jail term of six months or less. Violations of these sorts of rules often involve repeated, discrete acts which can result in potential liability of years of imprisonment. See, e. g., 16 U.S. C. 707 (violation of migratory bird treaties, laws, and regulations); 29 U.S. C. 216 (penalties under Fair Labor Standards Act); 36 CFR 1.3 ; 261.1b (violation of Forest Service prohibitions); 327.25 (violation of Army Corps of Engineers water resource development project regulations); 43 CFR 8351.1-1(b) Still, under the Court's holding it makes no difference whether a defendant is sentenced to a year in prison or for that matter to 20 years: As long as no single violation charged is punishable by more than six months, the defendant has no right to a jury. *338 The petitioner errs in the opposite direction. He argues a defendant is entitled to a jury trial whenever the penalties for the crimes charged combine to exceed six months' imprisonment, even if the trial judge rules that no more than six months' imprisonment will be imposed. We rejected this position in Taylor, however, and rightly so. A defendant charged with multiple petty offenses does not face the societal disapprobation attaching to conviction of a serious crime, and, so long as the trial judge rules at the outset that no more than six months' imprisonment will be imposed, the defendant does not face a serious deprivation of liberty. A judge who so rules is not withdrawing from a defendant a constitutional right to which he is entitled, as petitioner claims; the defendant is not entitled to the right to begin with if there is no potential for more than six months' imprisonment. The judge's statement has no independent force but only clarifies what would have been the law in its absence. Codispoti holds that a judge cannot impose a sentence exceeding six months' imprisonment for multiple petty offenses without conducting a jury trial, regardless of whether the judge announces that fact from bench. Amici in support of petitioner say it is inappropriate for judges to make these kinds of sentencing decisions before trial. The Court approved just this practice, however, in holding the Sixth Amendment does not require a judge to appoint counsel for a criminal defendant in a misdemeanor case if the judge will not sentence the defendant to any jail time. So too, Federal Rule of Criminal Procedure 58(a)(2) authorizes district courts not to apply the Federal Rules of Criminal Procedure in petty offense prosecutions for which no sentence of imprisonment will be imposed. The rules contemplate the determination being made before trial. Fed. Rule Crim. Proc. 58(a)(3). Petitioner's proposal would impose an enormous burden on an already beleaguered criminal justice system by increasing *339 to a dramatic extent the number of required jury trials. There are thousands of instances where minor offenses are tried before a judge, and we would err on the other side of sensible interpretation were we to hold that combining petty offenses in a single proceeding mandates a jury trial even when all possibility for a sentence longer than six months has been foreclosed. * * * When a defendant's liberty is put at great risk in a trial, he is entitled to have the trial conducted to a jury. This principle lies at the heart of the Sixth Amendment. The Court does grave injury to the Amendment by allowing a defendant to suffer a prison term of any length after a single trial before a single judge and without the protection of a jury. I join only the Court's judgment.

Justice Stevens

dissenting

Lewis v. United States

1996-06-24

https://www.courtlistener.com/opinion/118053/lewis-v-united-states/

https://www.courtlistener.com/api/rest/v3/clusters/118053/

1995-080

The Sixth Amendment provides that the accused is entitled to trial by an impartial jury "[i]n all criminal prosecutions." As Justice Kennedy persuasively explains, the "primary purpose of the jury in our legal system is to stand between the accused and the powers of the State." Ante, at 335. The majority, relying exclusively on cases in which the defendant was tried for a single offense, extends a rule designed with those cases in mind to the wholly dissimilar circumstance in which the prosecution concerns multiple offenses. I agree with Justice Kennedy to the extent he would hold that a prosecution which exposes the accused to a sentence of imprisonment longer than six months, whether for a single offense or for a series of offenses, is sufficiently serious to confer on the defendant the right to demand a jury. See ante, at 335-337. Unlike Justice Kennedy, however, I believe that the right to a jury trial attaches when the prosecution begins. *340 I do not quarrel with the established view that only defendants whose alleged misconduct is deemed serious by the legislature are entitled to be judged by a jury. But in my opinion, the legislature's determination of the severity of the charges against a defendant is properly measured by the maximum sentence authorized for the prosecution as a whole. The text of the Sixth Amendment supports this interpretation by referring expressly to "criminal prosecutions. " Nothing in our prior precedents conflicts with this view. True, some of our past cases (the ones on which the majority relies) have referred to an "offense" rather than a "prosecution." See, e. g., Blanton v. North Las Vegas, 489 U.S. 538, 541 (1989); Frank v. United States, 395 U.S. 147, 148 (1969). But the words were effectively interchangeable in those cases because the prosecutions at issue concerned only one offense. The contempt cases, which do involve multiple offenses, demonstrate that aggregation—that is, deciding whether the defendant has a right to a jury trial on the basis of the prosecution rather than the individual offenses—is appropriate. The majority attempts to distinguish Codispoti v. Pennsylvania, 418 U.S. 506 (1974), by suggesting that the Court's decision in that case turned on the absence of any statutory measure of severity. Ante, at 328. That observation is certainly correct to a point: The contempt cases are special because the sentence actually imposed provides the only available yardstick by which to judge compliance with the command of the Sixth Amendment. But that unique aspect of the cases does not speak to the aggregation question. Having determined that the defendants in Codispoti were sentenced to no more than six months for any individual contempt, it would follow from the rule the Court announces today that a jury trial was unnecessary. Yet we reversed and remanded, holding that "each contemnor was tried for *341 what was equivalent to a serious offense and was [therefore] entitled to a jury trial." 418 U.S., at 517 (emphasis added).[*] Justice Kennedy reads a second contempt case, Taylor v. Hayes, 418 U.S. 488 (1974), as standing for the proposition that a judge may defeat the jury trial right by promising a short sentence. He is mistaken. The dispositive fact in Taylor was not that the prison term imposed was only six months but rather that the actual sentence, acting as a proxy for the legislative judgment, demonstrated that "the State itself has determined that the contempt is not so serious as to warrant more than a six-month sentence." Id., at 496. In this case, by contrast, we have an explicit statutory expression of the legislative judgment that this prosecution is serious—the two offenses charged are punishable by a maximum prison sentence of 12 months. All agree that a judge may not strip a defendant of the right to a jury trial for a serious crime by promising a sentence of six months or less. This is so because "[o]pprobrium attaches to conviction of those crimes regardless of the length of the actual sentence imposed," ante, at 334 (Kennedy, J., concurring in judgment). In my view, the same rule must apply to prosecutions involving multiple offenses which are serious by virtue of their aggregate possible sentence. I see no basis for assuming that the dishonor associated with multiple convictions for petty offenses is less than the dishonor associated with conviction of a single serious crime. Because the right attaches at the moment of prosecution, a judge may not deprive a defendant of a jury trial by making a pretrial determination that the crimes charged will not warrant a sentence exceeding six months. *342 Petitioner is entitled to a jury trial because he was charged with offenses carrying a statutory maximum prison sentence of more than six months. I therefore would reverse the judgment of the Court of Appeals and, for that reason, I respectfully dissent.

The Sixth Amendment provides that the accused is entitled to trial by an impartial jury "[i]n all criminal prosecutions." As Justice Kennedy persuasively explains, the "primary purpose of the jury in our legal system is to stand between the accused and the powers of the State." Ante, at 335. The majority, relying exclusively on cases in which the defendant was tried for a single offense, extends a rule designed with those cases in mind to the wholly dissimilar circumstance in which the prosecution concerns multiple offenses. I agree with Justice Kennedy to the extent he would hold that a prosecution which exposes the accused to a sentence of imprisonment longer than six months, whether for a single offense or for a series of offenses, is sufficiently serious to confer on the defendant the right to demand a jury. See ante, at 335-337. Unlike Justice Kennedy, however, I believe that the right to a jury trial attaches when the prosecution begins. *340 I do not quarrel with the established view that only defendants whose alleged misconduct is deemed serious by the legislature are entitled to be judged by a jury. But in my opinion, the legislature's determination of the severity of the charges against a defendant is properly measured by the maximum sentence authorized for the prosecution as a whole. The text of the Sixth Amendment supports this interpretation by referring expressly to "criminal prosecutions. " Nothing in our prior precedents conflicts with this view. True, some of our past cases (the ones on which the majority relies) have referred to an "offense" rather than a "prosecution." See, e. g., ; But the words were effectively interchangeable in those cases because the prosecutions at issue concerned only one offense. The contempt cases, which do involve multiple offenses, demonstrate that aggregation—that is, deciding whether the defendant has a right to a jury trial on the basis of the prosecution rather than the individual offenses—is appropriate. The majority attempts to distinguish by suggesting that the Court's decision in that case turned on the absence of any statutory measure of severity. Ante, at 328. That observation is certainly correct to a point: The contempt cases are special because the sentence actually imposed provides the only available yardstick by which to judge compliance with the command of the Sixth Amendment. But that unique aspect of the cases does not speak to the aggregation question. Having determined that the defendants in Codispoti were sentenced to no more than six months for any individual contempt, it would follow from the rule the Court announces today that a jury trial was unnecessary. Yet we reversed and remanded, holding that "each contemnor was tried for *341 what was equivalent to a serious offense and was [therefore] entitled to a jury trial."[*] Justice Kennedy reads a second contempt case, as standing for the proposition that a judge may defeat the jury trial right by promising a short sentence. He is mistaken. The dispositive fact in Taylor was not that the prison term imposed was only six months but rather that the actual sentence, acting as a proxy for the legislative judgment, demonstrated that "the State itself has determined that the contempt is not so serious as to warrant more than a six-month sentence." In this case, by contrast, we have an explicit statutory expression of the legislative judgment that this prosecution is serious—the two offenses charged are punishable by a maximum prison sentence of 12 months. All agree that a judge may not strip a defendant of the right to a jury trial for a serious crime by promising a sentence of six months or less. This is so because "[o]pprobrium attaches to conviction of those crimes regardless of the length of the actual sentence imposed," ante, at 334 (Kennedy, J., concurring in judgment). In my view, the same rule must apply to prosecutions involving multiple offenses which are serious by virtue of their aggregate possible sentence. I see no basis for assuming that the dishonor associated with multiple convictions for petty offenses is less than the dishonor associated with conviction of a single serious crime. Because the right attaches at the moment of prosecution, a judge may not deprive a defendant of a jury trial by making a pretrial determination that the crimes charged will not warrant a sentence exceeding six months. *342 Petitioner is entitled to a jury trial because he was charged with offenses carrying a statutory maximum prison sentence of more than six months. I therefore would reverse the judgment of the Court of Appeals and, for that reason, I respectfully dissent.

Justice Thomas

majority

Talk America, Inc. v. Michigan Bell Telephone Co.

2011-06-09

https://www.courtlistener.com/opinion/218456/talk-america-inc-v-michigan-bell-telephone-co/

https://www.courtlistener.com/api/rest/v3/clusters/218456/

2010-059

In these cases, we consider whether an incumbent pro­ vider of local telephone service must make certain trans­ mission facilities available to competitors at cost-based rates. The Federal Communications Commission (FCC or Commission) as amicus curiae1 contends that its regula­ tions require the incumbent provider to do so if the facili­ —————— 1 The Solicitor General, joined by counsel for the FCC, represents that the amicus brief for the United States filed in this Court reflects the Commission’s considered interpretation of its own rules and orders. Brief for United States as Amicus Curiae 31. We thus refer to the Government’s arguments in these cases as those of the agency. See, e.g., Chase Bank USA, N. A. v. McCoy, 562 U. S. ___, ___ (2011) (slip op., at 8). 2 TALK AMERICA, INC. v. MICHIGAN BELL TELEPHONE CO. Opinion of the Court ties are to be used for interconnection: to link the incum­ bent provider’s telephone network with the competitor’s network for the mutual exchange of traffic. We defer to the Commission’s views and reverse the judgment below. I The Telecommunications Act of 1996 (1996 Act), 110 Stat. 56, imposed a number of duties on incumbent pro­ viders of local telephone service in order to facilitate mar­ ket entry by competitors. AT&T Corp. v. Iowa Utilities Bd., 525 U.S. 366, 371 (1999). The incumbent local ex­ change carriers (LECs) owned the local exchange net­ works: the physical equipment necessary to receive, prop­ erly route, and deliver phone calls among customers. Verizon Communications Inc. v. FCC, 535 U.S. 467, 490 (2002). Before the 1996 Act, a new, competitive LEC could not compete with an incumbent carrier without basically replicating the incumbent’s entire existing network. Ibid. The 1996 Act addressed that barrier to market entry by requiring incumbent LECs to share their networks with competitive LECs in several ways, two of which are rele­ vant here. First, 47 U.S. C. §251(c)(3) requires incumbent LECs to lease “on an unbundled basis”—i.e., a la carte— network elements specified by the Commission. This makes it easier for a competitor to create its own network without having to build every element from scratch. In identifying which network elements must be available for unbundled lease under §251(c)(3), the Commission is required to consider whether access is “necessary” and whether failing to provide access would “impair” a competitor’s provision of service. §251(d)(2). Second, §251(c)(2) mandates that incumbent LECs “provide . . . interconnection” between their networks and competitive LECs’ facilities. This ensures that customers on a com­ petitor’s network can call customers on the incumbent’s network, and vice versa. The interconnection duty is Cite as: 564 U. S. ____ (2011) 3 Opinion of the Court independent of the unbundling rules and not subject to impairment analysis. It is undisputed that both un­ bundled network elements and interconnection must be provided at cost-based rates. See §252(d)(1); Brief for Petitioner in No. 10–313, p. 28; Brief for Petitioners in No. 10–329, p. 7; Brief for Respondent 4. These cases concern incumbent LECs’ obligation to share existing “entrance facilities” with competitive LECs. Entrance facilities are the transmission facilities (typically wires or cables) that connect competitive LECs’ networks with incumbent LECs’ networks. The FCC recently adopted a regulation specifying that entrance facilities are not among the network elements that §251(c)(3) requires incumbents to lease to competitors on an unbundled basis at cost-based rates. See 47 CFR §51.319(e)(2)(i) (2005). The Commission noted, however, that it “d[id] not alter the right of competitive LECs to obtain interconnection facilities pursuant to section 251(c)(2).” In re Unbundled Access to Network Elements, 20 FCC Rcd. 2533, 2611, ¶140 (2005) (Triennial Review Remand Order). The specific issue here is whether respondent, Michigan Bell Telephone Company d/b/a AT&T Michigan (AT&T), must lease existing entrance facilities to competitive LECs at cost-based rates. The FCC interprets its regulations to require AT&T to do so for the purpose of interconnection. We begin by reviewing the Commission’s recent actions regarding entrance facilities and then explain the particu­ lar dispute that is before us today. A In 2003, the FCC decided, contrary to its previous or­ ders, that incumbent LECs were not obligated to provide cost-based unbundled access to entrance facilities under §251(c)(3). In re Review of Section 251 Unbundling Obli gations of Incumbent Local Exchange Carriers, 18 FCC Rcd. 16978, 17202–17205, ¶¶365–367 (2003) (Triennial 4 TALK AMERICA, INC. v. MICHIGAN BELL TELEPHONE CO. Opinion of the Court Review Order). Explaining that its previous approach had been “misguided” and “overly broad,” id., ¶¶366, 365, the Commission concluded that entrance facilities were not subject to the unbundling requirement because they are not network elements at all. See id., ¶366 (entrance facili­ ties “exist outside the incumbent LEC’s local network”). The Commission therefore did not conduct an impairment analysis. The FCC emphasized, however, the limits of this ruling. Entrance facilities are used for two purposes: interconnec­ tion and backhauling.2 It expressly “d[id] not alter” an incumbent LEC’s obligation under §251(c)(2) to provide “facilities in order to ‘interconnect with the incumbent LEC’s network.’ ” Id., ¶366 (brackets omitted). Thus, al­ though the Commission specified that §251(c)(3) did not require any unbundled leasing of entrance facilities, it determined in practical effect only that “incumbent LECs [were not obligated] to unbundle [entrance facilities] for the purpose of backhauling traffic.” Id., ¶365. On direct review, the D. C. Circuit questioned the Com­ mission’s determination that entrance facilities are not network elements under §251(c)(3), but found the agency rulemaking record insufficient and remanded to the Commission for further consideration. See United States Telecom Assn. v. FCC, 359 F.3d 554, 586, cert. denied, 543 U.S. 925 (2004). The court noted that if entrance facilities were in fact “ ‘network elements,’ ” then “an analysis of —————— 2 Although the parties and their amici disagree over the precise defi­ nition of backhauling, they all appear to agree that backhauling is important to competitive LECs and occurs when a competitive LEC uses an entrance facility to transport traffic from a leased portion of an incumbent network to the competitor’s own facilities. Backhauling does not involve the exchange of traffic between incumbent and competitive networks. See, e.g., Brief for Petitioners in No. 10–329, p. 25; Brief for United States Telecom Association et al. as Amici Curiae 32. It thus differs from interconnection—“the linking of two networks for the mutual exchange of traffic.” 47 CFR §51.5 (2010). Cite as: 564 U. S. ____ (2011) 5 Opinion of the Court impairment would presumably follow.” 359 F.3d, at 586. In 2005, the Commission responded. See Triennial Review Remand Order ¶¶136–141. The Commission re­ treated from its view that entrance facilities are not net­ work elements but adhered to its previous position that cost-based unbundled access to them need not be provided under §251(c)(3). Id., ¶¶137–138. Treating entrance facilities as network elements, the Commission concluded that competitive LECs are not impaired without access to them. Ibid. The Commission again emphasized that it “d[id] not alter the right of competitive LECs to obtain interconnection facilities pursuant to section 251(c)(2).” Id., ¶140. B In the wake of the Triennial Review Remand Order, AT&T notified competitive LECs that it would no longer provide entrance facilities at cost-based rates for either backhauling or interconnection, but would instead charge higher rates. Competitive LECs complained to the Michi­ gan Public Service Commission (PSC) that AT&T was unlawfully abrogating their right to cost-based intercon­ nection under §251(c)(2). The Michigan PSC agreed with the competitive LECs and ordered AT&T to continue providing entrance facilities for interconnection at cost­ based rates. AT&T challenged the Michigan PSC’s ruling in the District Court, which, relying on the Triennial Review Remand Order, ruled in AT&T’s favor. The Michigan PSC and several competitive LECs, including petitioner Talk America, Inc., appealed. The Court of Appeals for the Sixth Circuit affirmed over a dissent. Michigan Bell Telephone Co. v. Covad Commu nications Co., 597 F.3d 370 (2010). At the court’s invita­ tion, the FCC filed a brief as amicus curiae, arguing that the Triennial Review Remand Order did not change in­ 6 TALK AMERICA, INC. v. MICHIGAN BELL TELEPHONE CO. Opinion of the Court cumbent LECs’ interconnection obligations, including the obligation to lease entrance facilities for interconnection. The Sixth Circuit declined to defer to the FCC’s views, 597 F.3d, at 375, n. 6, and also expressly disagreed with the Seventh and Eighth Circuits, id., at 384–386 (discussing Illinois Bell Tel. Co. v. Box, 526 F.3d 1069 (2008), and Southwestern Bell Tel., L. P. v. Missouri Pub. Serv. Comm’n, 530 F.3d 676 (2008)).3 We granted certiorari, 562 U. S. ___ (2010), and now reverse. II Petitioners contend that AT&T must lease its existing entrance facilities for interconnection at cost-based rates. We agree. A No statute or regulation squarely addresses whether an incumbent LEC must provide access to entrance facilities at cost-based rates as part of its interconnection duty under §251(c)(2). According to the statute, each incum­ bent LEC has: “The duty to provide, for the facilities and equip­ ment of any requesting telecommunications carrier, interconnection with the local exchange carrier’s net­ work— “(A) for the transmission and routing of telephone exchange service and exchange access; “(B) at any technically feasible point within the car­ rier’s network; “(C) that is at least equal in quality to that provided by the local exchange carrier to itself or to any sub­ sidiary, affiliate, or any other party to which the car­ —————— 3 The Ninth Circuit has since joined the Seventh and Eighth Circuits. Pacific Bell Tel. Co. v. California Pub. Util. Comm’n, 621 F.3d 836 (2010). Cite as: 564 U. S. ____ (2011) 7 Opinion of the Court rier provides interconnection; and “(D) on rates, terms, and conditions that are just, reasonable, and nondiscriminatory, in accordance with the terms and conditions of the agreement and the requirements of this section and section 252 of this title.” Nothing in that language expressly addresses entrance facilities. Nor does any regulation do so. See Brief for United States as Amicus Curiae 22, n. 6. AT&T contends that the statute makes clear that an incumbent LEC need not provide access to any facilities— much less entrance facilities—to provide interconnection. The company points out that §251(c)(2) does not mention incumbent LECs’ facilities, but rather mandates only that incumbent LECs provide interconnection “for the facilities and equipment of any [competing] carrier.” In contrast, AT&T notes, §251(c)(3) requires that incumbent LECs provide unbundled “access to [their] network elements.” We do not find the statute so clear. Although §251(c)(2) does not expressly require that incumbent LECs lease facilities to provide interconnection, it also does not ex­ pressly excuse them from doing so. The statute says nothing about what an incumbent LEC must do to “pro­ vide . . . interconnection.” §251(c)(2). “[T]he facilities and equipment of any [competing] carrier” identifies the equipment that an incumbent LEC must allow to inter­ connect, but it does not specify what the incumbent LEC must do to make the interconnection possible. Ibid. B In the absence of any unambiguous statute or regula­ tion, we turn to the FCC’s interpretation of its regulations in its amicus brief. See, e.g., Chase Bank USA, N. A. v. McCoy, 562 U. S. ___, ___ (2011) (slip op., at 12). As we reaffirmed earlier this Term, we defer to an agency’s interpretation of its regulations, even in a legal brief, 8 TALK AMERICA, INC. v. MICHIGAN BELL TELEPHONE CO. Opinion of the Court unless the interpretation is “ ‘plainly erroneous or incon­ sistent with the regulation[s]’ ” or there is any other “ ‘rea­ son to suspect that the interpretation does not reflect the agency’s fair and considered judgment on the matter in question.’ ” Id., at ___, ___ (slip op., at 12, 14) (quoting Auer v. Robbins, 519 U.S. 452, 461, 462 (1997)). The Commission contends that its regulations require AT&T to provide access at cost-based rates to its exist­ ing entrance facilities for the purpose of interconnection. The Commission’s interpretation proceeds in three steps. First, an incumbent LEC must lease “technically feasible” facilities for interconnection. Second, entrance facili- ties are among the facilities that an incumbent must make available for interconnection, if technically feasible. Third, it is technically feasible to provide access to the particular entrance facilities at issue in these cases. 1 The Commission first contends that an incumbent LEC must lease, at cost-based rates, any requested facilities for obtaining interconnection with the incumbent LEC’s network, unless it is technically infeasible to do so. Sec­ tion 251(c)(2) mandates that an incumbent LEC provide interconnection, at cost-based rates, “at any technically feasible point within the carrier’s network.” The FCC has long construed §251(c)(2) to require incumbent LECs to provide, at cost-based rates, “any technically feasible method of obtaining interconnection . . . at a particular point.” 47 CFR §51.321(a) (2010). The requirement in §51.321(a) to provide a “method of obtaining interconnection,” the Commission argues, en­ compasses a duty to lease an existing facility to a compet­ ing LEC. When the Commission originally promulgated §51.321(a), it explained that incumbent LECs would be required to “adapt their facilities to interconnection” and to “accept the novel use of, and modification to, [their] Cite as: 564 U. S. ____ (2011) 9 Opinion of the Court network facilities.” In re Implementation of Local Compe tition Provisions in the Telecommunications Act of 1996, 11 FCC Rcd. 15499, 15605, ¶202 (1996) (Local Competition Order). Since then, as AT&T and its amici concede, in­ cumbent LECs have commonly leased certain facilities at cost-based prices to accommodate interconnection. See Brief for Respondent 28–29; Brief for United States Tele­ com Association et al. as Amici Curiae 33–35. As additional support for its assertion that incumbent LECs are obligated to lease facilities, the FCC highlights the examples in §51.321(b) of “[t]echnically feasible meth­ ods of obtaining interconnection,” which include “[m]eet point interconnection arrangements.” In a meet-point arrangement, an incumbent LEC “accommodat[es]” inter­ connection by building a transmission facility from its network to a designated point, where it connects with the competitor’s corresponding transmission facility. Local Competition Order ¶553. Compared to that requirement, the Commission argues, the obligation to lease existing facilities for interconnection is quite modest. 2 Next, the Commission contends that existing entrance facilities are among the facilities that an incumbent LEC must lease for interconnection. According to the FCC, the Triennial Review Remand Order adopted a regulatory def­ inition that reestablished that entrance facilities are part of an incumbent LEC’s network. See ¶137; see also 47 CFR §51.319(e) (2005). The end of every entrance facility is therefore a “point within [an incumbent] car­ rier’s network” at which a competing LEC could request interconnection, 47 U.S. C. §251(c)(2), and each entrance facility potentially provides a “technically feasible method of obtaining interconnection,” 47 CFR §51.321(a) (2010). 10 TALK AMERICA, INC. v. MICHIGAN BELL TELEPHONE CO. Opinion of the Court 3 Finally, the FCC contends that providing access to the entrance facilities here for interconnection purposes is technically feasible. Under the Commission’s regulations, an incumbent LEC bears the burden of showing that a requested method or point of interconnection is technically infeasible. See 47 CFR §§51.305(e), 51.321(d); see also §§51.305(d), 51.321(c) (previously successful intercon­ nection is “substantial evidence” of technical feasibility). AT&T does not dispute technical feasibility here.4 C The FCC’s interpretation is not “plainly erroneous or inconsistent with the regulation[s]. ” Auer, supra, at 461 (internal quotation marks omitted). First, we disagree with AT&T’s argument that entrance facilities are not a part of incumbent LECs’ networks. Indeed, the Commis­ sion’s view on this question is more than reasonable; it is certainly not plainly erroneous. The Triennial Review Remand Order responded to the D. C. Circuit’s decision questioning the Commission’s earlier finding that en­ trance facilities are not network elements. It revised the definition of dedicated transport—a type of network —————— 4 These cases concern only existing entrance facilities, and the Com­ mission expressly declines to address whether it reads its regulations to require incumbent LECs to build new entrance facilities for intercon­ nection. Brief for United States as Amicus Curiae 25, n. 7. The Com­ mission suggests here, as it has before, that additional considerations of cost or reasonableness might be appropriate if a competitive LEC were to request that an incumbent LEC build new entrance facilities for interconnection. Ibid. (noting that the Commission’s Wireline Competi­ tion Bureau has declined to require an incumbent LEC to bear the entire cost of building new entrance facilities); see also Local Competi tion Order ¶553 (explaining with respect to meet-point arrangements that “the parties and state commissions are in a better position than the Commission to determine the appropriate distance that would constitute the required reasonable accommodation of interconnection”). We express no view on the matter. Cite as: 564 U. S. ____ (2011) 11 Opinion of the Court element—to include entrance facilities. Triennial Review Remand Order ¶¶136–137; see 47 CFR §51.319(e)(1) (defining dedicated transport to include “incumbent LEC transmission facilities . . . between wire centers or switches owned by incumbent LECs and switches owned by [competing] carriers”). Given that revised definition, it is perfectly sensible to conclude that entrance facilities are a part of incumbent LECs’ networks. Second, we are not persuaded by AT&T’s argument that the Commission’s views conflict with the definition of interconnection in §51.5. That regulation provides: “Inter­ connection is the linking of two networks for the mutual exchange of traffic. This term does not include the trans­ port and termination of traffic.” AT&T focuses on the definition’s exclusion of “transport and termination of traffic.” An entrance facility is a transport facility, AT&T argues, and it makes no sense to require an incumbent LEC to furnish a transport facility for interconnection when the definition of interconnection expressly excludes transport. We think AT&T reads too much into the exclusion of “transport.” The regulation cannot possibly mean that no transport can occur across an interconnection facility, as that would directly conflict with the statutory language. See §251(c)(2) (requiring “interconnection . . . for the transmission and routing of [local] telephone exchange service”). The very reason for interconnection is the “mu­ tual exchange of traffic.” 47 CFR §51.5; see also Competi tive Telecommunications Assn. v. FCC, 117 F.3d 1068, 1071–1072 (CA8 1997) (“[T]he transmission and routing of telephone exchange service” is “what the interconnection, the physical link, would be used for” (internal quotation marks omitted)). The better reading of the regulation is that it merely reflects that the “transport and termination of traffic” is subject to different regulatory treatment than intercon­ 12 TALK AMERICA, INC. v. MICHIGAN BELL TELEPHONE CO. Opinion of the Court nection. Compensation for transport and termination— that is, for delivering local telephone calls placed by another carrier’s customer—is governed by separate stat­ utory provisions and regulations. See 47 U.S. C. §§251(b)(5), 252(d)(2); 47 CFR §51.701. The Commission explains that a competitive LEC typically pays one fee for interconnection—“just for having the link”—and then an additional fee for the transport and termination of tele­ phone calls. Tr. of Oral Arg. 28; see also Brief for United States as Amicus Curiae 3, n. 1. Entrance facilities, at least when used for the mutual exchange of traffic, seem to us to fall comfortably within the definition of intercon­ nection. See 597 F.3d, at 388 (Sutton, J., dissenting) (noting that entrance facilities are “designed for the very purpose of linking two carriers’ networks” (internal quota­ tion marks omitted)). In sum, the Commission’s interpretation of its regula­ tions is neither plainly erroneous nor inconsistent with the regulatory text. Contrary to AT&T’s assertion, there is no danger that deferring to the Commission would effectively “permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation.”5 Christen sen v. Harris County, 529 U.S. 576, 588 (2000). D Nor is there any other “reason to suspect that the inter­ pretation does not reflect the agency’s fair and considered judgment on the matter in question.” Auer, 519 U.S., at 462. We are not faced with a post-hoc rationalization by —————— 5 There is no merit to AT&T’s assertion that the FCC is improperly amending the list of “[t]echnically feasible methods of obtaining inter­ connection” set forth in 47 CFR §51.321(b). By its own terms, that list is nonexhaustive. See §51.321(b) (“[t]echnically feasible methods of obtaining interconnection . . . include, but are not limited to” the listed examples); see also §51.321(a) (“[A]n incumbent LEC shall provide . . . any technically feasible method of obtaining interconnection” (emphasis added)). Cite as: 564 U. S. ____ (2011) 13 Opinion of the Court Commission counsel of agency action that is under judicial review. See ibid.; see also Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168–169 (1962) (“The courts may not accept appellate counsel’s post hoc rationaliza­ tions for agency action; [SEC v.] Chenery[ Corp., 332 U.S. 194 (1947),] requires that an agency’s discretionary order be upheld, if at all, on the same basis articulated in the order by the agency itself”). And although the FCC con­ cedes that it is advancing a novel interpretation of its longstanding interconnection regulations, novelty alone is not a reason to refuse deference. The Commission ex­ plains that the issue in these cases did not arise until recently—when it initially eliminated unbundled access to entrance facilities in the Triennial Review Order. Until then, the Commission says, a competitive LEC typically would elect to lease a cost-priced entrance facility under §251(c)(3) since entrance facilities leased under §251(c)(3) could be used for any purpose—i.e., both interconnection and backhauling—but entrance facilities leased under §251(c)(2) can be used only for interconnection. We see no reason to doubt this explanation. AT&T suggests that the Commission is attempting to require under §251(c)(2) what courts have prevented it from requiring under §251(c)(3) and what the Commission itself said was not required in the Triennial Review Re mand Order. Tr. of Oral Arg. 50 (“[T]his is a rear guard effort to preserve [cost-based] pricing for things that the [C]ommission has said should no longer be available . . . at [such] pricing”). We do not think that AT&T is correct. 1 To begin with, AT&T’s accusation does not square with the regulatory history. The Commission was not com­ pelled to eliminate the obligation to lease unbundled entrance facilities at cost-based rates. It is true that, prior to the Triennial Review orders, the 14 TALK AMERICA, INC. v. MICHIGAN BELL TELEPHONE CO. Opinion of the Court Commission twice unsuccessfully attempted to impose sweeping unbundling requirements on incumbent LECs. See Local Competition Order ¶278; In re Implementation of Local Competition Provisions of the Telecommunications Act of 1996, 15 FCC Rcd. 3696, 3771–3904, ¶¶162–464 (1999); see also 47 CFR §51.319 (1997); §51.319 (2000). Each time, the Commission’s efforts were rejected for taking an unreasonably broad view of “impair[ment]” under §251(d)(2). See Iowa Utilities Bd., 525 U.S., at 392; United States Telecom Assn. v. FCC, 290 F.3d 415, 421– 428 (2002), cert. denied, 538 U.S. 940 (2003). In the Triennial Review Order, the Commission once again rein­ terpreted the “impair” standard and revised the list of network elements that incumbents must provide unbun­ dled to competitors. The Commission’s initial decision to eliminate the obli­ gation to unbundle entrance facilities, however, was not a result of the narrower view of impairment mandated by this Court and the D. C. Circuit. Instead, the Commis­ sion determined that entrance facilities need not be pro­ vided on an unbundled basis under §251(c)(3) on the novel ground that they are not network elements at all— something no court had ever suggested. Moreover, since its initial decision to eliminate the unbundling obligation for entrance facilities, the Commis­ sion has been committed to that position. When the D. C. Circuit questioned the Commission’s finding that entrance facilities are not network elements, the Commission re­ sponded by observing that the court “did not reject our conclusion that incumbent LECs need not unbundle en­ trance facilities, only the analysis through which we reached that conclusion.” Triennial Review Remand Order ¶137. The Commission then found another way to support that same conclusion. Cite as: 564 U. S. ____ (2011) 15 Opinion of the Court 2 More importantly, AT&T’s characterization of what the Commission has done, and is doing, is inaccurate. The Triennial Review orders eliminated incumbent LECs’ obli­ gation under §251(c)(3) to provide unbundled access to entrance facilities. But the FCC emphasized in both orders that it “d[id] not alter” the obligation on incumbent LECs under §251(c)(2) to provide facilities for interconnec­ tion purposes. Triennial Review Order ¶366; Triennial Review Remand Order ¶140. Because entrance facilities are used for backhauling and interconnection purposes, the FCC effectively eliminated only unbundled access to entrance facilities for backhauling purposes—a nuance it expressly noted in the first Triennial Review order. Tri ennial Review Order ¶365. That distinction is neither unusual nor ambiguous.6 In these cases, the Commission is simply explaining the interconnection obligation that it left undisturbed in the Triennial Review orders. We see no conflict between the Triennial Review orders and the Commission’s views expressed here.7 We are not concerned that the Triennial Review Re mand Order did not expressly distinguish between back­ —————— 6 The Commission has long recognized that a single facility can be used for different functions and that its regulatory treatment can vary depending on its use. Unbundled network elements, for example, may not be used for the exclusive provision of mobile wireless or long­ distance services. 47 CFR §51.309(b) (2010). Similarly, interconnection arrangements may be used for local telephone service but not for long­ distance services. §51.305(b). 7 The parties and their amici dispute whether an incumbent LEC has any way of knowing how a competitive LEC is using an entrance facility. This technical factual dispute simply underscores the appro­ priateness of deferring to the FCC. So long as the Commission is acting within the scope of its delegated authority and in accordance with prescribed procedures, it has greater expertise and stands in a better position than this Court to make the technical and policy judgments necessary to administer the complex regulatory program at issue here. 16 TALK AMERICA, INC. v. MICHIGAN BELL TELEPHONE CO. Opinion of the Court hauling and interconnection, though AT&T makes much of that fact. AT&T argues that the Commission’s holding in the Triennial Review Remand Order is broader than that in the Triennial Review Order. In AT&T’s view, the Commission concluded in the Triennial Review Remand Order that competitors are not impaired if they lack cost­ based access to entrance facilities for backhauling or interconnection. There are two flaws with AT&T’s reasoning. First, as we have discussed, the Triennial Review Remand Order reinstated the ultimate conclusion of the Triennial Review Order and changed only “the analysis through which [it] reached that conclusion.” Triennial Review Remand Order ¶137. Second, unlike §251(c)(3)’s unbundling obligation, §251(c)(2)’s interconnection obligation does not require the Commission to consider impairment. As the dissent below observed, it would be surprising indeed if the FCC had taken the novel step of incorporating impairment into interconnection without comment. 597 F.3d, at 389 (opin­ ion of Sutton, J.). * * * The FCC as amicus curiae has advanced a reasonable interpretation of its regulations, and we defer to its views. The judgment of the United States Court of Appeals for the Sixth Circuit is reversed. It is so ordered. JUSTICE KAGAN took no part in the consideration or decision of these cases. Cite as: 564 U. S. ____ (2011) 1 SCALIA, J., concurring SUPREME COURT OF THE UNITED STATES _________________ Nos. 10–313 and 10–329 _________________ TALK AMERICA, INC., PETITIONER 10–313 v. MICHIGAN BELL TELEPHONE COMPANY DBA AT&T MICHIGAN ORJIAKOR ISIOGU, ET AL., PETITIONERS 10–329 v.

In these cases, we consider whether an incumbent pro­ vider of local telephone service must make certain trans­ mission facilities available to competitors at cost-based rates. The Federal Communications Commission (FCC or Commission) as amicus curiae1 contends that its regula­ tions require the incumbent provider to do so if the facili­ —————— 1 The Solicitor General, joined by counsel for the FCC, represents that the amicus brief for the United States filed in this Court reflects the Commission’s considered interpretation of its own rules and orders. Brief for United States as Amicus Curiae 31. We thus refer to the Government’s arguments in these cases as those of the agency. See, e.g., Chase Bank USA, N. A. v. McCoy, 562 U. S. (2011) (slip op., at 8). 2 TALK AMERICA, INC. v. MICHIGAN BELL TELEPHONE CO. Opinion of the Court ties are to be used for interconnection: to link the incum­ bent provider’s telephone network with the competitor’s network for the mutual exchange of traffic. We defer to the Commission’s views and reverse the judgment below. I The Telecommunications Act of 1996 (1996 Act), 110 Stat. 56, imposed a number of duties on incumbent pro­ viders of local telephone service in order to facilitate mar­ ket entry by competitors. AT&T The incumbent local ex­ change carriers (LECs) owned the local exchange net­ works: the physical equipment necessary to receive, prop­ erly route, and deliver phone calls among customers. Verizon Communications (2002). Before the 1996 Act, a new, competitive LEC could not compete with an incumbent carrier without basically replicating the incumbent’s entire existing network. The 1996 Act addressed that barrier to market entry by requiring incumbent LECs to share their networks with competitive LECs in several ways, two of which are rele­ vant here. First, 47 U.S. C. requires incumbent LECs to lease “on an unbundled basis”—i.e., a la carte— network elements specified by the Commission. This makes it easier for a competitor to create its own network without having to build every element from scratch. In identifying which network elements must be available for unbundled lease under the Commission is required to consider whether access is “necessary” and whether failing to provide access would “impair” a competitor’s provision of service. Second, mandates that incumbent LECs “provide interconnection” between their networks and competitive LECs’ facilities. This ensures that customers on a com­ petitor’s network can call customers on the incumbent’s network, and vice versa. The interconnection duty is Cite as: 564 U. S. (2011) 3 Opinion of the Court independent of the unbundling rules and not subject to impairment analysis. It is undisputed that both un­ bundled network elements and interconnection must be provided at cost-based rates. See Brief for Petitioner in No. 10–313, p. 28; Brief for Petitioners in No. 10–329, p. 7; Brief for Respondent 4. These cases concern incumbent LECs’ obligation to share existing “entrance facilities” with competitive LECs. Entrance facilities are the transmission facilities (typically wires or cables) that connect competitive LECs’ networks with incumbent LECs’ networks. The FCC recently adopted a regulation specifying that entrance facilities are not among the network elements that requires incumbents to lease to competitors on an unbundled basis at cost-based rates. See (e)(2)(i) (2005). The Commission noted, however, that it “d[id] not alter the right of competitive LECs to obtain interconnection facilities pursuant to section 251(c)(2).” In re Unbundled Access to Network Elements, 20 FCC Rcd. 2533, 2611, (2005) (Triennial Review Remand Order). The specific issue here is whether respondent, Michigan Bell Telephone Company d/b/a AT&T Michigan (AT&T), must lease existing entrance facilities to competitive LECs at cost-based rates. The FCC interprets its regulations to require AT&T to do so for the purpose of interconnection. We begin by reviewing the Commission’s recent actions regarding entrance facilities and then explain the particu­ lar dispute that is before us today. A In 2003, the FCC decided, contrary to its previous or­ ders, that incumbent LECs were not obligated to provide cost-based unbundled access to entrance facilities under In re Review of Section 251 Unbundling Obli gations of Incumbent Local Exchange Carriers, 18 FCC Rcd. 16978, 17202–17205, ¶–367 (Triennial 4 TALK AMERICA, INC. v. MICHIGAN BELL TELEPHONE CO. Opinion of the Court Review Order). Explaining that its previous approach had been “misguided” and “overly broad,” the Commission concluded that entrance facilities were not subject to the unbundling requirement because they are not network elements at all. See (entrance facili­ ties “exist outside the incumbent LEC’s local network”). The Commission therefore did not conduct an impairment analysis. The FCC emphasized, however, the limits of this ruling. Entrance facilities are used for two purposes: interconnec­ tion and backhauling.2 It expressly “d[id] not alter” an incumbent LEC’s obligation under to provide “facilities in order to ‘interconnect with the incumbent LEC’s network.’ ” Thus, al­ though the Commission specified that did not require any unbundled leasing of entrance facilities, it determined in practical effect only that “incumbent LECs [were not obligated] to unbundle [entrance facilities] for the purpose of backhauling traffic.” On direct review, the D. C. Circuit questioned the Com­ mission’s determination that entrance facilities are not network elements under but found the agency rulemaking record insufficient and remanded to the Commission for further consideration. See United States Telecom cert. denied, 543 U.S. 925 (2004). The court noted that if entrance facilities were in fact “ ‘network elements,’ ” then “an analysis of —————— 2 Although the parties and their amici disagree over the precise defi­ nition of backhauling, they all appear to agree that backhauling is important to competitive LECs and occurs when a competitive LEC uses an entrance facility to transport traffic from a leased portion of an incumbent network to the competitor’s own facilities. Backhauling does not involve the exchange of traffic between incumbent and competitive networks. See, e.g., Brief for Petitioners in No. 10–329, p. 25; Brief for United States Telecom Association et al. as Amici Curiae 32. It thus differs from interconnection—“the linking of two networks for the mutual exchange of traffic.” Cite as: 564 U. S. (2011) 5 Opinion of the Court impairment would presumably follow.” 359 F.3d, at In 2005, the Commission responded. See Triennial Review Remand Order ¶¶136–141. The Commission re­ treated from its view that entrance facilities are not net­ work elements but adhered to its previous position that cost-based unbundled access to them need not be provided under ¶¶137–138. Treating entrance facilities as network elements, the Commission concluded that competitive LECs are not impaired without access to them. The Commission again emphasized that it “d[id] not alter the right of competitive LECs to obtain interconnection facilities pursuant to section 251(c)(2).” B In the wake of the Triennial Review Remand Order, AT&T notified competitive LECs that it would no longer provide entrance facilities at cost-based rates for either backhauling or interconnection, but would instead charge higher rates. Competitive LECs complained to the Michi­ gan Public Service Commission (PSC) that AT&T was unlawfully abrogating their right to cost-based intercon­ nection under The Michigan PSC agreed with the competitive LECs and ordered AT&T to continue providing entrance facilities for interconnection at cost­ based rates. AT&T challenged the Michigan PSC’s ruling in the District Court, which, relying on the Triennial Review Remand Order, ruled in AT&T’s favor. The Michigan PSC and several competitive LECs, including petitioner Talk America, Inc., appealed. The Court of Appeals for the Sixth Circuit affirmed over a dissent. Michigan Bell Telephone At the court’s invita­ tion, the FCC filed a brief as amicus curiae, arguing that the Triennial Review Remand Order did not change in­ 6 TALK AMERICA, INC. v. MICHIGAN BELL TELEPHONE CO. Opinion of the Court cumbent LECs’ interconnection obligations, including the obligation to lease entrance facilities for interconnection. The Sixth Circuit declined to defer to the FCC’s views, 597 F.3d, at 375, n. 6, and also expressly disagreed with the Seventh and Eighth Circuits, at 384–386 and Southwestern Bell Tel., L. ).3 We granted certiorari, 562 U. S. and now reverse. II Petitioners contend that AT&T must lease its existing entrance facilities for interconnection at cost-based rates. We agree. A No statute or regulation squarely addresses whether an incumbent LEC must provide access to entrance facilities at cost-based rates as part of its interconnection duty under According to the statute, each incum­ bent LEC has: “The duty to provide, for the facilities and equip­ ment of any requesting telecommunications carrier, interconnection with the local exchange carrier’s net­ work— “(A) for the transmission and routing of telephone exchange service and exchange access; “(B) at any technically feasible point within the car­ rier’s network; “(C) that is at least equal in quality to that provided by the local exchange carrier to itself or to any sub­ sidiary, affiliate, or any other party to which the car­ —————— 3 The Ninth Circuit has since joined the Seventh and Eighth Circuits. Pacific Bell Tel. Cite as: 564 U. S. (2011) 7 Opinion of the Court rier provides interconnection; and “(D) on rates, terms, and conditions that are just, reasonable, and nondiscriminatory, in accordance with the terms and conditions of the agreement and the requirements of this section and section 252 of this title.” Nothing in that language expressly addresses entrance facilities. Nor does any regulation do so. See Brief for United States as Amicus Curiae 22, n. 6. AT&T contends that the statute makes clear that an incumbent LEC need not provide access to any facilities— much less entrance facilities—to provide interconnection. The company points out that does not mention incumbent LECs’ facilities, but rather mandates only that incumbent LECs provide interconnection “for the facilities and equipment of any [competing] carrier.” In contrast, AT&T notes, requires that incumbent LECs provide unbundled “access to [their] network elements.” We do not find the statute so clear. Although does not expressly require that incumbent LECs lease facilities to provide interconnection, it also does not ex­ pressly excuse them from doing so. The statute says nothing about what an incumbent LEC must do to “pro­ vide interconnection.” “[T]he facilities and equipment of any [competing] carrier” identifies the equipment that an incumbent LEC must allow to inter­ connect, but it does not specify what the incumbent LEC must do to make the interconnection possible. B In the absence of any unambiguous statute or regula­ tion, we turn to the FCC’s interpretation of its regulations in its amicus brief. See, e.g., Chase Bank USA, N. A. v. McCoy, 562 U. S. (2011) (slip op., at 12). As we reaffirmed earlier this Term, we defer to an agency’s interpretation of its regulations, even in a legal brief, 8 TALK AMERICA, INC. v. MICHIGAN BELL TELEPHONE CO. Opinion of the Court unless the interpretation is “ ‘plainly erroneous or incon­ sistent with the regulation[s]’ ” or there is any other “ ‘rea­ son to suspect that the interpretation does not reflect the agency’s fair and considered judgment on the matter in question.’ ” at (slip op., at 12, 14) ). The Commission contends that its regulations require AT&T to provide access at cost-based rates to its exist­ ing entrance facilities for the purpose of interconnection. The Commission’s interpretation proceeds in three steps. First, an incumbent LEC must lease “technically feasible” facilities for interconnection. Second, entrance facili- ties are among the facilities that an incumbent must make available for interconnection, if technically feasible. Third, it is technically feasible to provide access to the particular entrance facilities at issue in these cases. 1 The Commission first contends that an incumbent LEC must lease, at cost-based rates, any requested facilities for obtaining interconnection with the incumbent LEC’s network, unless it is technically infeasible to do so. Sec­ tion 251(c)(2) mandates that an incumbent LEC provide interconnection, at cost-based rates, “at any technically feasible point within the carrier’s network.” The FCC has long construed to require incumbent LECs to provide, at cost-based rates, “any technically feasible method of obtaining interconnection at a particular point.” (a) The requirement in to provide a “method of obtaining interconnection,” the Commission argues, en­ compasses a duty to lease an existing facility to a compet­ ing LEC. When the Commission originally promulgated it explained that incumbent LECs would be required to “adapt their facilities to interconnection” and to “accept the novel use of, and modification to, [their] Cite as: 564 U. S. (2011) 9 Opinion of the Court network facilities.” In re Implementation of Local Compe tition Provisions in the Telecommunications Act of 1996, 11 FCC Rcd. 15499, 15605, ¶202 (1996) (Local Competition Order). Since then, as AT&T and its amici concede, in­ cumbent LECs have commonly leased certain facilities at cost-based prices to accommodate interconnection. See Brief for Respondent 28–29; Brief for United States Tele­ com Association et al. as Amici Curiae 33–35. As additional support for its assertion that incumbent LECs are obligated to lease facilities, the FCC highlights the examples in of “[t]echnically feasible meth­ ods of obtaining interconnection,” which include “[m]eet point interconnection arrangements.” In a meet-point arrangement, an incumbent LEC “accommodat[es]” inter­ connection by building a transmission facility from its network to a designated point, where it connects with the competitor’s corresponding transmission facility. Local Competition Order ¶553. Compared to that requirement, the Commission argues, the obligation to lease existing facilities for interconnection is quite modest. 2 Next, the Commission contends that existing entrance facilities are among the facilities that an incumbent LEC must lease for interconnection. According to the FCC, the Triennial Review Remand Order adopted a regulatory def­ inition that reestablished that entrance facilities are part of an incumbent LEC’s network. See ¶137; see also (e) (2005). The end of every entrance facility is therefore a “point within [an incumbent] car­ rier’s network” at which a competing LEC could request interconnection, 47 U.S. C. and each entrance facility potentially provides a “technically feasible method of obtaining interconnection,” (a) 10 TALK AMERICA, INC. v. MICHIGAN BELL TELEPHONE CO. Opinion of the Court 3 Finally, the FCC contends that providing access to the entrance facilities here for interconnection purposes is technically feasible. Under the Commission’s regulations, an incumbent LEC bears the burden of showing that a requested method or point of interconnection is technically infeasible. See (e), 51.321(d); see also 51.321(c) (previously successful intercon­ nection is “substantial evidence” of technical feasibility). AT&T does not dispute technical feasibility here.4 C The FCC’s interpretation is not “plainly erroneous or inconsistent with the regulation[s]. ” (internal quotation marks omitted). First, we disagree with AT&T’s argument that entrance facilities are not a part of incumbent LECs’ networks. Indeed, the Commis­ sion’s view on this question is more than reasonable; it is certainly not plainly erroneous. The Triennial Review Remand Order responded to the D. C. Circuit’s decision questioning the Commission’s earlier finding that en­ trance facilities are not network elements. It revised the definition of dedicated transport—a type of network —————— 4 These cases concern only existing entrance facilities, and the Com­ mission expressly declines to address whether it reads its regulations to require incumbent LECs to build new entrance facilities for intercon­ nection. Brief for United States as Amicus Curiae 25, n. 7. The Com­ mission suggests here, as it has before, that additional considerations of cost or reasonableness might be appropriate if a competitive LEC were to request that an incumbent LEC build new entrance facilities for interconnection. (noting that the Commission’s Wireline Competi­ tion Bureau has declined to require an incumbent LEC to bear the entire cost of building new entrance facilities); see also Local Competi tion Order ¶553 (explaining with respect to meet-point arrangements that “the parties and state commissions are in a better position than the Commission to determine the appropriate distance that would constitute the required reasonable accommodation of interconnection”). We express no view on the matter. Cite as: 564 U. S. (2011) 11 Opinion of the Court element—to include entrance facilities. Triennial Review Remand Order ¶¶136–137; see (e)(1) (defining dedicated transport to include “incumbent LEC transmission facilities between wire centers or switches owned by incumbent LECs and switches owned by [competing] carriers”). Given that revised definition, it is perfectly sensible to conclude that entrance facilities are a part of incumbent LECs’ networks. Second, we are not persuaded by AT&T’s argument that the Commission’s views conflict with the definition of interconnection in That regulation provides: “Inter­ connection is the linking of two networks for the mutual exchange of traffic. This term does not include the trans­ port and termination of traffic.” AT&T focuses on the definition’s exclusion of “transport and termination of traffic.” An entrance facility is a transport facility, AT&T argues, and it makes no sense to require an incumbent LEC to furnish a transport facility for interconnection when the definition of interconnection expressly excludes transport. We think AT&T reads too much into the exclusion of “transport.” The regulation cannot possibly mean that no transport can occur across an interconnection facility, as that would directly conflict with the statutory language. See (requiring “interconnection for the transmission and routing of [local] telephone exchange service”). The very reason for interconnection is the “mu­ tual exchange of traffic.” ; see also Competi tive Telecommunications 1071–1072 (“[T]he transmission and routing of telephone exchange service” is “what the interconnection, the physical link, would be used for” (internal quotation marks omitted)). The better reading of the regulation is that it merely reflects that the “transport and termination of traffic” is subject to different regulatory treatment than intercon­ 12 TALK AMERICA, INC. v. MICHIGAN BELL TELEPHONE CO. Opinion of the Court nection. Compensation for transport and termination— that is, for delivering local telephone calls placed by another carrier’s customer—is governed by separate stat­ utory provisions and regulations. See 47 U.S. C. 252(d)(2); The Commission explains that a competitive LEC typically pays one fee for interconnection—“just for having the link”—and then an additional fee for the transport and termination of tele­ phone calls. Tr. of Oral Arg. 28; see also Brief for United States as Amicus Curiae 3, n. 1. Entrance facilities, at least when used for the mutual exchange of traffic, seem to us to fall comfortably within the definition of intercon­ nection. See (noting that entrance facilities are “designed for the very purpose of linking two carriers’ networks” (internal quota­ tion marks omitted)). In sum, the Commission’s interpretation of its regula­ tions is neither plainly erroneous nor inconsistent with the regulatory text. Contrary to AT&T’s assertion, there is no danger that deferring to the Commission would effectively “permit the agency, under the guise of interpreting a regulation, to create de facto a new regulation.”5 Christen D Nor is there any other “reason to suspect that the inter­ pretation does not reflect the agency’s fair and considered judgment on the matter in question.” 519 U.S., at 462. We are not faced with a post-hoc rationalization by —————— 5 There is no merit to AT&T’s assertion that the FCC is improperly amending the list of “[t]echnically feasible methods of obtaining inter­ connection” set forth in (b). By its own terms, that list is nonexhaustive. See (“[t]echnically feasible methods of obtaining interconnection include, but are not limited to” the listed examples); see also (“[A]n incumbent LEC shall provide any technically feasible method of obtaining interconnection” (emphasis added)). Cite as: 564 U. S. (2011) 13 Opinion of the Court Commission counsel of agency action that is under judicial review. See ibid.; see also Burlington Truck Lines, Inc. v. United States, U.S. 156, (“The courts may not accept appellate counsel’s post hoc rationaliza­ tions for agency action; [SEC v.] Chenery[ Corp., 332 U.S. 194 (1947),] requires that an agency’s discretionary order be upheld, if at all, on the same basis articulated in the order by the agency itself”). And although the FCC con­ cedes that it is advancing a novel interpretation of its longstanding interconnection regulations, novelty alone is not a reason to refuse deference. The Commission ex­ plains that the issue in these cases did not arise until recently—when it initially eliminated unbundled access to entrance facilities in the Triennial Review Order. Until then, the Commission says, a competitive LEC typically would elect to lease a cost-priced entrance facility under since entrance facilities leased under could be used for any purpose—i.e., both interconnection and backhauling—but entrance facilities leased under can be used only for interconnection. We see no reason to doubt this explanation. AT&T suggests that the Commission is attempting to require under what courts have prevented it from requiring under and what the Commission itself said was not required in the Triennial Review Re mand Order. Tr. of Oral Arg. 50 (“[T]his is a rear guard effort to preserve [cost-based] pricing for things that the [C]ommission has said should no longer be available at [such] pricing”). We do not think that AT&T is correct. 1 To begin with, AT&T’s accusation does not square with the regulatory history. The Commission was not com­ pelled to eliminate the obligation to lease unbundled entrance facilities at cost-based rates. It is true that, prior to the Triennial Review orders, the 14 TALK AMERICA, INC. v. MICHIGAN BELL TELEPHONE CO. Opinion of the Court Commission twice unsuccessfully attempted to impose sweeping unbundling requirements on incumbent LECs. See Local Competition Order ¶278; In re Implementation of Local Competition Provisions of the Telecommunications Act of 1996, 15 FCC Rcd. 3696, 3771–3904, ¶¶162–464 ; see also ; Each time, the Commission’s efforts were rejected for taking an unreasonably broad view of “impair[ment]” under See Iowa Utilities ; United States Telecom 421– 428 (2002), cert. denied, In the Triennial Review Order, the Commission once again rein­ terpreted the “impair” standard and revised the list of network elements that incumbents must provide unbun­ dled to competitors. The Commission’s initial decision to eliminate the obli­ gation to unbundle entrance facilities, however, was not a result of the narrower view of impairment mandated by this Court and the D. C. Circuit. Instead, the Commis­ sion determined that entrance facilities need not be pro­ vided on an unbundled basis under on the novel ground that they are not network elements at all— something no court had ever suggested. Moreover, since its initial decision to eliminate the unbundling obligation for entrance facilities, the Commis­ sion has been committed to that position. When the D. C. Circuit questioned the Commission’s finding that entrance facilities are not network elements, the Commission re­ sponded by observing that the court “did not reject our conclusion that incumbent LECs need not unbundle en­ trance facilities, only the analysis through which we reached that conclusion.” Triennial Review Remand Order ¶137. The Commission then found another way to support that same conclusion. Cite as: 564 U. S. (2011) 15 Opinion of the Court 2 More importantly, AT&T’s characterization of what the Commission has done, and is doing, is inaccurate. The Triennial Review orders eliminated incumbent LECs’ obli­ gation under to provide unbundled access to entrance facilities. But the FCC emphasized in both orders that it “d[id] not alter” the obligation on incumbent LECs under to provide facilities for interconnec­ tion purposes. Triennial Review Order ; Triennial Review Remand Order Because entrance facilities are used for backhauling and interconnection purposes, the FCC effectively eliminated only unbundled access to entrance facilities for backhauling purposes—a nuance it expressly noted in the first Triennial Review order. Tri ennial Review Order That distinction is neither unusual nor ambiguous.6 In these cases, the Commission is simply explaining the interconnection obligation that it left undisturbed in the Triennial Review orders. We see no conflict between the Triennial Review orders and the Commission’s views expressed here.7 We are not concerned that the Triennial Review Re mand Order did not expressly distinguish between back­ —————— 6 The Commission has long recognized that a single facility can be used for different functions and that its regulatory treatment can vary depending on its use. Unbundled network elements, for example, may not be used for the exclusive provision of mobile wireless or long­ distance services. (b) Similarly, interconnection arrangements may be used for local telephone service but not for long­ distance services. 7 The parties and their amici dispute whether an incumbent LEC has any way of knowing how a competitive LEC is using an entrance facility. This technical factual dispute simply underscores the appro­ priateness of deferring to the FCC. So long as the Commission is acting within the scope of its delegated authority and in accordance with prescribed procedures, it has greater expertise and stands in a better position than this Court to make the technical and policy judgments necessary to administer the complex regulatory program at issue here. 16 TALK AMERICA, INC. v. MICHIGAN BELL TELEPHONE CO. Opinion of the Court hauling and interconnection, though AT&T makes much of that fact. AT&T argues that the Commission’s holding in the Triennial Review Remand Order is broader than that in the Triennial Review Order. In AT&T’s view, the Commission concluded in the Triennial Review Remand Order that competitors are not impaired if they lack cost­ based access to entrance facilities for backhauling or interconnection. There are two flaws with AT&T’s reasoning. First, as we have discussed, the Triennial Review Remand Order reinstated the ultimate conclusion of the Triennial Review Order and changed only “the analysis through which [it] reached that conclusion.” Triennial Review Remand Order ¶137. Second, unlike ’s unbundling obligation, ’s interconnection obligation does not require the Commission to consider impairment. As the dissent below observed, it would be surprising indeed if the FCC had taken the novel step of incorporating impairment into interconnection without (opin­ ion of Sutton, J.). * * * The FCC as amicus curiae has advanced a reasonable interpretation of its regulations, and we defer to its views. The judgment of the United States Court of Appeals for the Sixth Circuit is reversed. It is so ordered. JUSTICE KAGAN took no part in the consideration or decision of these cases. Cite as: 564 U. S. (2011) 1 SCALIA, J., concurring SUPREME COURT OF THE UNITED STATES Nos. 10–313 and 10–329 TALK AMERICA, INC., PETITIONER 10–313 v. MICHIGAN BELL TELEPHONE COMPANY DBA AT&T MICHIGAN ORJIAKOR ISIOGU, ET AL., PETITIONERS 10–329 v.

Justice Scalia

concurring

Talk America, Inc. v. Michigan Bell Telephone Co.

2011-06-09

https://www.courtlistener.com/opinion/218456/talk-america-inc-v-michigan-bell-telephone-co/

https://www.courtlistener.com/api/rest/v3/clusters/218456/

2010-059

I join the opinion of the Court. I would reach the same result even without benefit of the rule that we will defer to an agency’s interpretation of its own regulations, a rule in recent years attributed to our opinion in Auer v. Robbins, 519 U.S. 452, 461 (1997), though it first appeared in our jurisprudence more than half a century earlier, see Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945). In this suit I have no need to rely on Auer deference, because I believe the FCC’s interpretation is the fairest reading of the orders in question. Most cogently, ¶140 of the Trien nial Review Remand Order serves no purpose unless one accepts (as AT&T does not) the distinction between back­ hauling and interconnection that is referred to in footnotes to ¶¶138 and 141 of the order. 20 FCC Rcd. 2533, 2610– 2612 (2005). The order would have been clearer, to be sure, if the distinction had been made in a footnote to ¶140 2 TALK AMERICA, INC. v. MICHIGAN BELL TELEPHONE CO. SCALIA, J., concurring itself, but the distinction is there, and without it ¶140 has no point. It is comforting to know that I would reach the Court’s result even without Auer. For while I have in the past uncritically accepted that rule, I have become increasingly doubtful of its validity. On the surface, it seems to be a natural corollary—indeed, an a fortiori application—of the rule that we will defer to an agency’s interpretation of the statute it is charged with implementing, see Chevron U. S. A. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). But it is not. When Congress enacts an imprecise statute that it commits to the implementation of an executive agency, it has no control over that implemen­ tation (except, of course, through further, more precise, legislation). The legislative and executive functions are not combined. But when an agency promulgates an im­ precise rule, it leaves to itself the implementation of that rule, and thus the initial determination of the rule’s mean­ ing. And though the adoption of a rule is an exercise of the executive rather than the legislative power, a properly adopted rule has fully the effect of law. It seems contrary to fundamental principles of separation of powers to per­ mit the person who promulgates a law to interpret it as well. “When the legislative and executive powers are united in the same person, or in the same body of magis­ trates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact ty­ rannical laws, to execute them in a tyrannical manner.” Montesquieu, Spirit of the Laws bk. XI, ch. 6, pp. 151–152 (O. Piest ed., T. Nugent transl. 1949). Deferring to an agency’s interpretation of a statute does not encourage Congress, out of a desire to expand its power, to enact vague statutes; the vagueness effectively cedes power to the Executive. By contrast, deferring to an agency’s interpretation of its own rule encourages the agency to enact vague rules which give it the power, in Cite as: 564 U. S. ____ (2011) 3 SCALIA, J., concurring future adjudications, to do what it pleases. This frustrates the notice and predictability purposes of rulemaking, and promotes arbitrary government. The seeming inappro­ priateness of Auer deference is especially evident in cases such as these, involving an agency that has repeatedly been rebuked in its attempts to expand the statute beyond its text, and has repeatedly sought new means to the same ends. There are undoubted advantages to Auer deference. It makes the job of a reviewing court much easier, and since it usually produces affirmance of the agency’s view with­ out conflict in the Circuits, it imparts (once the agency has spoken to clarify the regulation) certainty and predict­ ability to the administrative process. The defects of Auer deference, and the alternatives to it, are fully explored in Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 612 (1996). We have not been asked to reconsider Auer in the present case. When we are, I will be receptive to doing so

I join the opinion of the Court. I would reach the same result even without benefit of the rule that we will defer to an agency’s interpretation of its own regulations, a rule in recent years attributed to our opinion in though it first appeared in our jurisprudence more than half a century earlier, see Bowles v. Seminole Rock & Sand Co., In this suit I have no need to rely on Auer deference, because I believe the FCC’s interpretation is the fairest reading of the orders in question. Most cogently, ¶140 of the Trien nial Review Remand Order serves no purpose unless one accepts (as AT&T does not) the distinction between back­ hauling and interconnection that is referred to in footnotes to ¶¶138 and 141 of the order. 20 FCC Rcd. 2533, 2610– 2612 (2005). The order would have been clearer, to be sure, if the distinction had been made in a footnote to ¶140 2 TALK AMERICA, INC. v. MICHIGAN BELL TELEPHONE CO. SCALIA, J., concurring itself, but the distinction is there, and without it ¶140 has no point. It is comforting to know that I would reach the Court’s result even without Auer. For while I have in the past uncritically accepted that rule, I have become increasingly doubtful of its validity. On the surface, it seems to be a natural corollary—indeed, an a fortiori application—of the rule that we will defer to an agency’s interpretation of the statute it is charged with implementing, see Chevron U. S. A. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). But it is not. When Congress enacts an imprecise statute that it commits to the implementation of an executive agency, it has no control over that implemen­ tation (except, of course, through further, more precise, legislation). The legislative and executive functions are not combined. But when an agency promulgates an im­ precise rule, it leaves to itself the implementation of that rule, and thus the initial determination of the rule’s mean­ ing. And though the adoption of a rule is an exercise of the executive rather than the legislative power, a properly adopted rule has fully the effect of law. It seems contrary to fundamental principles of separation of powers to per­ mit the person who promulgates a law to interpret it as well. “When the legislative and executive powers are united in the same person, or in the same body of magis­ trates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact ty­ rannical laws, to execute them in a tyrannical manner.” Montesquieu, Spirit of the Laws bk. XI, ch. 6, pp. 151–152 (O. Piest ed., T. Nugent transl. 1949). Deferring to an agency’s interpretation of a statute does not encourage Congress, out of a desire to expand its power, to enact vague statutes; the vagueness effectively cedes power to the Executive. By contrast, deferring to an agency’s interpretation of its own rule encourages the agency to enact vague rules which give it the power, in Cite as: 564 U. S. (2011) 3 SCALIA, J., concurring future adjudications, to do what it pleases. This frustrates the notice and predictability purposes of rulemaking, and promotes arbitrary government. The seeming inappro­ priateness of Auer deference is especially evident in cases such as these, involving an agency that has repeatedly been rebuked in its attempts to expand the statute beyond its text, and has repeatedly sought new means to the same ends. There are undoubted advantages to Auer deference. It makes the job of a reviewing court much easier, and since it usually produces affirmance of the agency’s view with­ out conflict in the Circuits, it imparts (once the agency has spoken to clarify the regulation) certainty and predict­ ability to the administrative process. The defects of Auer deference, and the alternatives to it, are fully explored in Manning, Constitutional Structure and Judicial Deference to Agency Interpretations of Agency Rules, 96 Colum. L. Rev. 612 (1996). We have not been asked to reconsider Auer in the present case. When we are, I will be receptive to doing so

Justice Souter

majority

Brentwood Academy v. Tennessee Secondary School Athletic Assn.

2001-02-20

https://www.courtlistener.com/opinion/118403/brentwood-academy-v-tennessee-secondary-school-athletic-assn/

https://www.courtlistener.com/api/rest/v3/clusters/118403/

2000-018

The issue is whether a state wide association incorporated to regulate interscholastic athletic competition among public and private secondary schools may be regarded as engaging in state action when it enforces a rule against a member school. The association in question here includes most public schools located within the State, acts through their representatives, draws its officers from them, is largely funded *291 by their dues and income received in their stead, and has historically been seen to regulate in lieu of the State Board of Education's exercise of its own authority. We hold that the association's regulatory activity may and should be treated as state action owing to the pervasive entwinement of state school officials in the structure of the association, there being no offsetting reason to see the association's acts in any other way. I Respondent Tennessee Secondary School Athletic Association (Association) is a not-for-profit membership corporation organized to regulate interscholastic sport among the public and private high schools in Tennessee that belong to it. No school is forced to join, but without any other authority actually regulating interscholastic athletics, it enjoys the memberships of almost all the State's public high schools (some 290 of them or 84% of the Association's voting membership), far outnumbering the 55 private schools that belong. A member school's team may play or scrimmage only against the team of another member, absent a dispensation. The Association's rulemaking arm is its legislative council, while its board of control tends to administration. The voting membership of each of these nine-person committees is limited under the Association's bylaws to high school principals, assistant principals, and superintendents elected by the member schools, and the public school administrators who so serve typically attend meetings during regular school hours. Although the Association's staff members are not paid by the State, they are eligible to join the State's public retirement system for its employees. Member schools pay dues to the Association, though the bulk of its revenue is gate receipts at member teams' football and basketball tournaments, many of them held in public arenas rented by the Association. The constitution, bylaws, and rules of the Association set standards of school membership and the eligibility of students to play in interscholastic games. Each school, for *292 example, is regulated in awarding financial aid, most coaches must have a Tennessee state teaching license, and players must meet minimum academic standards and hew to limits on student employment. Under the bylaws, "in all matters pertaining to the athletic relations of his school," App. 138, the principal is responsible to the Association, which has the power "to suspend, to fine, or otherwise penalize any member school for the violation of any of the rules of the Association or for other just cause," id., at 100. Ever since the Association was incorporated in 1925, Tennessee's State Board of Education (State Board) has (to use its own words) acknowledged the corporation's functions "in providing standards, rules and regulations for interscholastic competition in the public schools of Tennessee," id., at 211. More recently, the State Board cited its statutory authority, Tenn. Code Ann. § 49-1—302 (1996) (App. 220), when it adopted language expressing the relationship between the Association and the State Board. Specifically, in 1972, it went so far as to adopt a rule expressly "designat[ing]" the Association as "the organization to supervise and regulate the athletic activities in which the public junior and senior high schools in Tennessee participate on an interscholastic basis." Tennessee State Board of Education, Administrative Rules and Regulations, Rule 0520-1—2—.26 (1972) (later moved to Rule 0520-1—2—.08). The Rule provided that "the authority granted herein shall remain in effect until revoked" and instructed the State Board's chairman to "designate a person or persons to serve in an ex-officio capacity on the [Association's governing bodies]." App. 211. That same year, the State Board specifically approved the Association's rules and regulations, while reserving the right to review future changes. Thus, on several occasions over the next 20 years, the State Board reviewed, approved, or reaffirmed its approval of the recruiting Rule at issue in this case. In 1996, however, the State Board dropped the original Rule 0520-1—2—.08 expressly designating the Association *293 as regulator; it substituted a statement "recogniz[ing] the value of participation in interscholastic athletics and the role of [the Association] in coordinating interscholastic athletic competition," while "authoriz[ing] the public schools of the state to voluntarily maintain membership in [the Association]." Id., at 220. The action before us responds to a 1997 regulatory enforcement proceeding brought against petitioner, Brentwood Academy, a private parochial high school member of the Association. The Association's board of control found that Brentwood violated a rule prohibiting "undue influence" in recruiting athletes, when it wrote to incoming students and their parents about spring football practice. The Association accordingly placed Brentwood's athletic program on probation for four years, declared its football and boys' basketball teams ineligible to compete in play-offs for two years, and imposed a $3,000 fine. When these penalties were imposed, all the voting members of the board of control and legislative council were public school administrators. Brentwood sued the Association and its executive director in federal court under Rev. Stat. § 1979, 42 U.S. C. § 1983, claiming that enforcement of the Rule was state action and a violation of the First and Fourteenth Amendments. The District Court entered summary judgment for Brentwood and enjoined the Association from enforcing the Rule. 13 F. Supp. 2d 670 (MD Tenn. 1998). In holding the Association to be a state actor under § 1983 and the Fourteenth Amendment, the District Court found that the State had delegated authority over high school athletics to the Association, characterized the relationship between the Association and its public school members as symbiotic, and emphasized the predominantly public character of the Association's membership and leadership. The court relied on language in National Collegiate Athletic Assn. v. Tarkanian, 488 U.S. 179, 193, n. 13 (1988), suggesting that state wide interscholastic athletic associations are state actors, and on other federal cases *294 in which such organizations had uniformly been held to be acting under color of state law. The United States Court of Appeals for the Sixth Circuit reversed. 180 F.3d 758 (1999). It recognized that there is no single test to identify state actions and state actors but applied three criteria derived from Blum v. Yaretsky, 457 U.S. 991 (1982), Lugar v. Edmondson Oil Co., 457 U.S. 922 (1982), and Rendell-Baker v. Kohn, 457 U.S. 830 (1982), and found no state action under any of them. It said the District Court was mistaken in seeing a symbiotic relationship between the State and the Association, it emphasized that the Association was neither engaging in a traditional and exclusive public function nor responding to state compulsion, and it gave short shrift to the language from Tarkanian on which the District Court relied. Rehearing en banc was later denied over the dissent of two judges, who criticized the panel decision for creating a conflict among state and federal courts, for being inconsistent with Tarkanian, and for lacking support in the "functional" analysis of private activity required by West v. Atkins, 487 U.S. 42 (1988), for assessing the significance of cooperation between public officials and a private actor. 190 F.3d 705 (CA6 1999) (Merritt, J., dissenting from denial of rehearing en banc). We granted certiorari, 528 U.S. 1153 (2000), to resolve the conflict[1] and now reverse. *295 II A Our cases try to plot a line between state action subject to Fourteenth Amendment scrutiny and private conduct (however exceptionable) that is not. Tarkanian, supra, at 191; Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349 (1974). The judicial obligation is not only to "`preserv[e] an area of individual freedom by limiting the reach of federal law' and avoi[d] the imposition of responsibility on a State for conduct it could not control," Tarkanian, supra, at 191 (quoting Lugar, supra, at 936-937), but also to assure that constitutional standards are invoked "when it can be said that the State is responsible for the specific conduct of which the plaintiff complains," Blum, supra, at 1004 (emphasis in original). If the Fourteenth Amendment is not to be displaced, therefore, its ambit cannot be a simple line between States and people operating outside formally governmental organizations, and the deed of an ostensibly private organization or individual is to be treated sometimes as if a State had caused it to be performed. Thus, we say that state action may be found if, though only if, there is such a "close nexus between the State and the challenged action" that seemingly private behavior "may be fairly treated as that of the State itself." Jackson, supra, at 351.[2] What is fairly attributable is a matter of normative judgment, and the criteria lack rigid simplicity. From the range of circumstances that could point toward the State behind an individual face, no one fact can function as a necessary condition across the board for finding state action; nor is any set of circumstances absolutely sufficient, for there may be some *296 countervailing reason against attributing activity to the government. See Tarkanian, 488 U. S., at 193, 196; Polk County v. Dodson, 454 U.S. 312 (1981). Our cases have identified a host of facts that can bear on the fairness of such an attribution. We have, for example, held that a challenged activity may be state action when it results from the State's exercise of "coercive power," Blum, 457 U. S., at 1004, when the State provides "significant encouragement, either overt or covert," ibid., or when a private actor operates as a "willful participant in joint activity with the State or its agents," Lugar, supra, at 941 (internal quotation marks omitted). We have treated a nominally private entity as a state actor when it is controlled by an "agency of the State," Pennsylvania v. Board of Directors of City Trusts of Philadelphia, 353 U.S. 230, 231 (1957) (per curiam), when it has been delegated a public function by the State, cf., e. g., West v. Atkins, supra, at 56; Edmonson v. Leesville Concrete Co., 500 U.S. 614, 627-628 (1991), when it is "entwined with governmental policies," or when government is "entwined in [its] management or control," Evans v. Newton, 382 U.S. 296, 299, 301 (1966). Amidst such variety, examples may be the best teachers, and examples from our cases are unequivocal in showing that the character of a legal entity is determined neither by its expressly private characterization in statutory law, nor by the failure of the law to acknowledge the entity's inseparability from recognized government officials or agencies. Lebron v. National Railroad Passenger Corporation, 513 U.S. 374 (1995), held that Amtrak was the Government for constitutional purposes, regardless of its congressional designation as private; it was organized under federal law to attain governmental objectives and was directed and controlled by federal appointees. Pennsylvania v. Board of Directors of City Trusts of Philadelphia, supra, held the privately endowed Girard College to be a state actor and enforcement of its private founder's limitation of admission *297 to whites attributable to the State, because, consistent with the terms of the settlor's gift, the college's board of directors was a state agency established by state law. Ostensibly the converse situation occurred in Evans v. Newton, supra, which held that private trustees to whom a city had transferred a park were nonetheless state actors barred from enforcing racial segregation, since the park served the public purpose of providing community recreation, and "the municipality remain[ed] entwined in [its] management [and] control," id., at 301. These examples of public entwinement in the management and control of ostensibly separate trusts or corporations foreshadow this case, as this Court itself anticipated in Tarkanian. Tarkanian arose when an undoubtedly state actor, the University of Nevada, suspended its basketball coach, Tarkanian, in order to comply with rules and recommendations of the National Collegiate Athletic Association (NCAA). The coach charged the NCAA with state action, arguing that the state university had delegated its own functions to the NCAA, clothing the latter with authority to make and apply the university's rules, the result being joint action making the NCAA a state actor. To be sure, it is not the strict holding in Tarkanian that points to our view of this case, for we found no state action on the part of the NCAA. We could see, on the one hand, that the university had some part in setting the NCAA's rules, and the Supreme Court of Nevada had gone so far as to hold that the NCAA had been delegated the university's traditionally exclusive public authority over personnel. 488 U.S., at 190. But on the other side, the NCAA's policies were shaped not by the University of Nevada alone, but by several hundred member institutions, most of them having no connection with Nevada, and exhibiting no color of Nevada law. Id., at 193. Since it was difficult to see the NCAA, not as a collective membership, but as surrogate for the one State, we held the organization's connection with Nevada *298 too insubstantial to ground a state-action claim. Id., at 193, 196. But dictum in Tarkanian pointed to a contrary result on facts like ours, with an organization whose member public schools are all within a single State. "The situation would, of course, be different if the [Association's] membership consisted entirely of institutions located within the same State, many of them public institutions created by the same sovereign." Id., at 193, n. 13. To support our surmise, we approvingly cited two cases: Clark v. Arizona Interscholastic Assn., 695 F.2d 1126 (CA9 1982), cert. denied, 464 U.S. 818 (1983), a challenge to a state high school athletic association that kept boys from playing on girls' interscholastic volleyball teams in Arizona; and Louisiana High School Athletic Assn. v. St. Augustine High School, 396 F.2d 224 (CA5 1968), a parochial school's attack on the racially segregated system of interscholastic high school athletics maintained by the athletic association. In each instance, the Court of Appeals treated the athletic association as a state actor. B Just as we foresaw in Tarkanian, the "necessarily factbound inquiry," Lugar, 457 U. S., at 939, leads to the conclusion of state action here. The nominally private character of the Association is overborne by the pervasive entwinement of public institutions and public officials in its composition and workings, and there is no substantial reason to claim unfairness in applying constitutional standards to it. The Association is not an organization of natural persons acting on their own, but of schools, and of public schools to the extent of 84% of the total. Under the Association's bylaws, each member school is represented by its principal or a faculty member, who has a vote in selecting members of the governing legislative council and board of control from eligible principals, assistant principals, and superintendents. *299 Although the findings and prior opinions in this case include no express conclusion of law that public school officials act within the scope of their duties when they represent their institutions, no other view would be rational, the official nature of their involvement being shown in any number of ways. Interscholastic athletics obviously play an integral part in the public education of Tennessee, where nearly every public high school spends money on competitions among schools. Since a pickup system of interscholastic games would not do, these public teams need some mechanism to produce rules and regulate competition. The mechanism is an organization overwhelmingly composed of public school officials who select representatives (all of them public officials at the time in question here), who in turn adopt and enforce the rules that make the system work. Thus, by giving these jobs to the Association, the 290 public schools of Tennessee belonging to it can sensibly be seen as exercising their own authority to meet their own responsibilities. Unsurprisingly, then, the record indicates that half the council or board meetings documented here were held during official school hours, and that public schools have largely provided for the Association's financial support. A small portion of the Association's revenue comes from membership dues paid by the schools, and the principal part from gate receipts at tournaments among the member schools. Unlike mere public buyers of contract services, whose payments for services rendered do not convert the service providers into public actors, see Rendell-Baker, 457 U. S., at 839-843, the schools here obtain membership in the service organization and give up sources of their own income to their collective association. The Association thus exercises the authority of the predominantly public schools to charge for admission to their games; the Association does not receive this money from the schools, but enjoys the schools' moneymaking capacity as its own. In sum, to the extent of 84% of its membership, the Association is an organization of public schools represented by their *300 officials acting in their official capacity to provide an integral element of secondary public schooling. There would be no recognizable Association, legal or tangible, without the public school officials, who do not merely control but overwhelmingly perform all but the purely ministerial acts by which the Association exists and functions in practical terms. Only the 16% minority of private school memberships prevents this entwinement of the Association and the public school system from being total and their identities totally indistinguishable. To complement the entwinement of public school officials with the Association from the bottom up, the State of Tennessee has provided for entwinement from top down. State Board members are assigned ex officio to serve as members of the board of control and legislative council, and the Association's ministerial employees are treated as state employees to the extent of being eligible for membership in the state retirement system. It is, of course, true that the time is long past when the close relationship between the surrogate association and its public members and public officials acting as such was attested frankly. As mentioned, the terms of the State Board's Rule expressly designating the Association as regulator of interscholastic athletics in public schools were deleted in 1996, the year after a Federal District Court held that the Association was a state actor because its rules were "caused, directed and controlled by the Tennessee Board of Education," Graham v. TSSAA, No. 1:95—CV-044, 1995 WL 115890, *5 (ED Tenn., Feb. 20, 1995).[3] *301 But the removal of the designation language from Rule 0520-1—2—.08 affected nothing but words. Today the State Board's member-designees continue to sit on the Association's committees as nonvoting members, and the State continues to welcome Association employees in its retirement scheme. The close relationship is confirmed by the Association's enforcement of the same preamendment rules and regulations reviewed and approved by the State Board (including the recruiting Rule challenged by Brentwood), and by the State Board's continued willingness to allow students to satisfy its physical education requirement by taking part in interscholastic athletics sponsored by the Association. The most one can say on the evidence is that the State Board once freely acknowledged the Association's official character but now does it by winks and nods.[4] The amendment to the Rule in 1996 affected candor but not the "momentum" of the Association's prior involvement with the State Board. Evans v. Newton, 382 U. S., at 301. The District Court spoke to this point in finding that because of "custom and *302 practice," "the conduct of the parties has not materially changed" since 1996, "the connections between TSSAA and the State [being] still pervasive and entwined." 13 F. Supp. 2d, at 681. The entwinement down from the State Board is therefore unmistakable, just as the entwinement up from the member public schools is overwhelming. Entwinement will support a conclusion that an ostensibly private organization ought to be charged with a public character and judged by constitutional standards; entwinement to the degree shown here requires it. C Entwinement is also the answer to the Association's several arguments offered to persuade us that the facts would not support a finding of state action under various criteria applied in other cases. These arguments are beside the point, simply because the facts justify a conclusion of state action under the criterion of entwinement, a conclusion in no sense unsettled merely because other criteria of state action may not be satisfied by the same facts. The Association places great stress, for example, on the application of a public function test, as exemplified in Rendell-Baker v. Kohn, 457 U.S. 830 (1982). There, an apparently private school provided education for students whose special needs made it difficult for them to finish high school. The record, however, failed to show any tradition of providing public special education to students unable to cope with a regular school, who had historically been cared for (or ignored) according to private choice. It was true that various public school districts had adopted the practice of referring students to the school and paying their tuition, and no one disputed that providing the instruction aimed at a proper public objective and conferred a public benefit. But we held that the performance of such a public function did not permit a finding of state action on the part of the school unless the function performed was exclusively and traditionally *303 public, as it was not in that case. The Association argues that application of the public function criterion would produce the same result here, and we will assume, arguendo, that it would. But this case does not turn on a public function test, any more than Rendell-Baker had anything to do with entwinement of public officials in the special school. For the same reason, it avails the Association nothing to stress that the State neither coerced nor encouraged the actions complained of. "Coercion" and "encouragement" are like "entwinement" in referring to kinds of facts that can justify characterizing an ostensibly private action as public instead. Facts that address any of these criteria are significant, but no one criterion must necessarily be applied. When, therefore, the relevant facts show pervasive entwinement to the point of largely overlapping identity, the implication of state action is not affected by pointing out that the facts might not loom large under a different test. D This is not to say that all of the Association's arguments are rendered beside the point by the public officials' involvement in the Association, for after application of the entwinement criterion, or any other, there is a further potential issue, and the Association raises it. Even facts that suffice to show public action (or, standing alone, would require such a finding) may be outweighed in the name of some value at odds with finding public accountability in the circumstances. In Polk County, 454 U. S., at 322, a defense lawyer's actions were deemed private even though she was employed by the county and was acting within the scope of her duty as a public defender. Full-time public employment would be conclusive of state action for some purposes, see West v. Atkins, 487 U. S., at 50, accord, Lugar, 457 U. S., at 935, n. 18, but not when the employee is doing a defense lawyer's primary job; then, the public defender does "not ac[t] on behalf of the State; he is the State's adversary." Polk County, supra, at *304 323, n. 13. The state-action doctrine does not convert opponents into virtual agents. The assertion of such a countervailing value is the nub of each of the Association's two remaining arguments, neither of which, however, persuades us. The Association suggests, first, that reversing the judgment here will somehow trigger an epidemic of unprecedented federal litigation. Brief for Respondents 35. Even if that might be counted as a good reason for a Polk County decision to call the Association's action private, the record raises no reason for alarm here. Save for the Sixth Circuit, every Court of Appeals to consider a state wide athletic association like the one here has found it a state actor. This majority view began taking shape even before Tarkanian, which cited two such decisions approvingly, see supra, at 298 (and this was six years after Blum, Rendell-Baker, and Lugar, on which the Sixth Circuit relied here). No one, however, has pointed to any explosion of § 1983 cases against interscholastic athletic associations in the affected jurisdictions. Not to put too fine a point on it, two District Courts in Tennessee have previously held the Association itself to be a state actor, see Graham, 1995 WL 115890, at *5; Crocker v. Tennessee Secondary School Athletic Assn., 735 F. Supp. 753 (MD Tenn. 1990), affirmance order, 908 F.2d 972, 973 (CA6 1990), but there is no evident wave of litigation working its way across the State. A reversal of the judgment here portends nothing more than the harmony of an outlying Circuit with precedent otherwise uniform. Nor do we think there is anything to be said for the Association's contention that there is no need to treat it as a state actor since any public school applying the Association's rules is itself subject to suit under § 1983 or Title IX of the Education Amendments of 1972, 86 Stat. 373, 20 U.S. C. §§ 1681— 1688. Brief for Respondents 30. If Brentwood's claim were pushing at the edge of the class of possible defendant state actors, an argument about the social utility of expanding *305 that class would at least be on point, but because we are nowhere near the margin in this case, the Association is really asking for nothing less than a dispensation for itself. Its position boils down to saying that the Association should not be dressed in state clothes because other, concededly public actors are; that Brentwood should be kept out of court because a different plaintiff raising a different claim in a different case may find the courthouse open. Pleas for special treatment are hard to sell, although saying that does not, of course, imply anything about the merits of Brentwood's complaint; the issue here is merely whether Brentwood properly names the Association as a § 1983 defendant, not whether it should win on its claim. The judgment of the Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

The issue is whether a state wide association incorporated to regulate interscholastic athletic competition among public and private secondary schools may be regarded as engaging in state action when it enforces a rule against a member school. The association in question here includes most public schools located within the State, acts through their representatives, draws its officers from them, is largely funded *291 by their dues and income received in their stead, and has historically been seen to regulate in lieu of the State Board of Education's exercise of its own authority. We hold that the association's regulatory activity may and should be treated as state action owing to the pervasive entwinement of state school officials in the structure of the association, there being no offsetting reason to see the association's acts in any other way. I Respondent Tennessee Secondary School Athletic Association (Association) is a not-for-profit membership corporation organized to regulate interscholastic sport among the public and private high schools in Tennessee that belong to it. No school is forced to join, but without any other authority actually regulating interscholastic athletics, it enjoys the memberships of almost all the State's public high schools (some 290 of them or 84% of the Association's voting membership), far outnumbering the 55 private schools that belong. A member school's team may play or scrimmage only against the team of another member, absent a dispensation. The Association's rulemaking arm is its legislative council, while its board of control tends to administration. The voting membership of each of these nine-person committees is limited under the Association's bylaws to high school principals, assistant principals, and superintendents elected by the member schools, and the public school administrators who so serve typically attend meetings during regular school hours. Although the Association's staff members are not paid by the State, they are eligible to join the State's public retirement system for its employees. Member schools pay dues to the Association, though the bulk of its revenue is gate receipts at member teams' football and basketball tournaments, many of them held in public arenas rented by the Association. The constitution, bylaws, and rules of the Association set standards of school membership and the eligibility of students to play in interscholastic games. Each school, for *292 example, is regulated in awarding financial aid, most coaches must have a Tennessee state teaching license, and players must meet minimum academic standards and hew to limits on student employment. Under the bylaws, "in all matters pertaining to the athletic relations of his school," App. 138, the principal is responsible to the Association, which has the power "to suspend, to fine, or otherwise penalize any member school for the violation of any of the rules of the Association or for other just cause," Ever since the Association was incorporated in 1925, Tennessee's State Board of Education (State Board) has (to use its own words) acknowledged the corporation's functions "in providing standards, rules and regulations for interscholastic competition in the public schools of Tennessee," More recently, the State Board cited its statutory authority, —302 (1996) (App. 220), when it adopted language expressing the relationship between the Association and the State Board. Specifically, in 1972, it went so far as to adopt a rule expressly "designat[ing]" the Association as "the organization to supervise and regulate the athletic activities in which the public junior and senior high schools in Tennessee participate on an interscholastic basis." Tennessee State Board of Education, Administrative Rules and Regulations, Rule 0520-1—2—.26 (1972) (later moved to Rule 0520-1—2—.08). The Rule provided that "the authority granted herein shall remain in effect until revoked" and instructed the State Board's chairman to "designate a person or persons to serve in an ex-officio capacity on the [Association's governing bodies]." App. 211. That same year, the State Board specifically approved the Association's rules and regulations, while reserving the right to review future changes. Thus, on several occasions over the next 20 years, the State Board reviewed, approved, or reaffirmed its approval of the recruiting Rule at issue in this case. In 1996, however, the State Board dropped the original Rule 0520-1—2—.08 expressly designating the Association *293 as regulator; it substituted a statement "recogniz[ing] the value of participation in interscholastic athletics and the role of [the Association] in coordinating interscholastic athletic competition," while "authoriz[ing] the public schools of the state to voluntarily maintain membership in [the Association]." The action before us responds to a 1997 regulatory enforcement proceeding brought against petitioner, Brentwood Academy, a private parochial high school member of the Association. The Association's board of control found that Brentwood violated a rule prohibiting "undue influence" in recruiting athletes, when it wrote to incoming students and their parents about spring football practice. The Association accordingly placed Brentwood's athletic program on probation for four years, declared its football and boys' basketball teams ineligible to compete in play-offs for two years, and imposed a $3,000 fine. When these penalties were imposed, all the voting members of the board of control and legislative council were public school administrators. Brentwood sued the Association and its executive director in federal court under Rev. Stat. 1979, 42 U.S. C. 1983, claiming that enforcement of the Rule was state action and a violation of the First and Fourteenth Amendments. The District Court entered summary judgment for Brentwood and enjoined the Association from enforcing the Rule. In holding the Association to be a state actor under 1983 and the Fourteenth Amendment, the District Court found that the State had delegated authority over high school athletics to the Association, characterized the relationship between the Association and its public school members as symbiotic, and emphasized the predominantly public character of the Association's membership and leadership. The court relied on language in National Collegiate Athletic suggesting that state wide interscholastic athletic associations are state actors, and on other federal cases *294 in which such organizations had uniformly been held to be acting under color of state law. The United States Court of Appeals for the Sixth Circuit reversed. It recognized that there is no single test to identify state actions and state actors but applied three criteria derived from and and found no state action under any of them. It said the District Court was mistaken in seeing a symbiotic relationship between the State and the Association, it emphasized that the Association was neither engaging in a traditional and exclusive public function nor responding to state compulsion, and it gave short shrift to the language from on which the District Court relied. Rehearing en banc was later denied over the dissent of two judges, who criticized the panel decision for creating a conflict among state and federal courts, for being inconsistent with and for lacking support in the "functional" analysis of private activity required by for assessing the significance of cooperation between public officials and a private actor. We granted certiorari, to resolve the conflict[1] and now reverse. *295 II A Our cases try to plot a line between state action subject to Fourteenth Amendment scrutiny and private conduct (however exceptionable) that is not. ; The judicial obligation is not only to "`preserv[e] an area of individual freedom by limiting the reach of federal law' and avoi[d] the imposition of responsibility on a State for conduct it could not control," (quoting ), but also to assure that constitutional standards are invoked "when it can be said that the State is responsible for the specific conduct of which the plaintiff complains," 4 If the Fourteenth Amendment is not to be displaced, therefore, its ambit cannot be a simple line between States and people operating outside formally governmental organizations, and the deed of an ostensibly private organization or individual is to be treated sometimes as if a State had caused it to be performed. Thus, we say that state action may be found if, though only if, there is such a "close nexus between the State and the challenged action" that seemingly private behavior "may be fairly treated as that of the State itself." Jackson,[2] What is fairly attributable is a matter of normative judgment, and the criteria lack rigid simplicity. From the range of circumstances that could point toward the State behind an individual face, no one fact can function as a necessary condition across the board for finding state action; nor is any set of circumstances absolutely sufficient, for there may be some *296 countervailing reason against attributing activity to the government. See 196; Polk Our cases have identified a host of facts that can bear on the fairness of such an attribution. We have, for example, held that a challenged activity may be state action when it results from the State's exercise of "coercive power," 457 U. S., 4, when the State provides "significant encouragement, either overt or covert," ib or when a private actor operates as a "willful participant in joint activity with the State or its agents," We have treated a nominally private entity as a state actor when it is controlled by an "agency of the State," when it has been delegated a public function by the State, cf., e. g., ; when it is "entwined with governmental policies," or when government is "entwined in [its] management or control," Amidst such variety, examples may be the best teachers, and examples from our cases are unequivocal in showing that the character of a legal entity is determined neither by its expressly private characterization in statutory law, nor by the failure of the law to acknowledge the entity's inseparability from recognized government officials or agencies. held that Amtrak was the Government for constitutional purposes, regardless of its congressional designation as private; it was organized under federal law to attain governmental objectives and was directed and controlled by federal appointees. held the privately endowed Girard College to be a state actor and enforcement of its private founder's limitation of admission *297 to whites attributable to the State, because, consistent with the terms of the settlor's gift, the college's board of directors was a state agency established by state law. Ostensibly the converse situation occurred in which held that private trustees to whom a city had transferred a park were nonetheless state actors barred from enforcing racial segregation, since the park served the public purpose of providing community recreation, and "the municipality remain[ed] entwined in [its] management [and] control," These examples of public entwinement in the management and control of ostensibly separate trusts or corporations foreshadow this case, as this Court itself anticipated in arose when an undoubtedly state actor, the University of Nevada, suspended its basketball coach, in order to comply with rules and recommendations of the National Collegiate Athletic Association (NCAA). The coach charged the NCAA with state action, arguing that the state university had delegated its own functions to the NCAA, clothing the latter with authority to make and apply the university's rules, the result being joint action making the NCAA a state actor. To be sure, it is not the strict holding in that points to our view of this case, for we found no state action on the part of the NCAA. We could see, on the one hand, that the university had some part in setting the NCAA's rules, and the Supreme Court of Nevada had gone so far as to hold that the NCAA had been delegated the university's traditionally exclusive public authority over But on the other side, the NCAA's policies were shaped not by the University of Nevada alone, but by several hundred member institutions, most of them having no connection with Nevada, and exhibiting no color of Nevada law. Since it was difficult to see the NCAA, not as a collective membership, but as surrogate for the one State, we held the organization's connection with Nevada *298 too insubstantial to ground a state-action claim. 196. But dictum in pointed to a contrary result on facts like ours, with an organization whose member public schools are all within a single State. "The situation would, of course, be different if the [Association's] membership consisted entirely of institutions located within the same State, many of them public institutions created by the same sovereign." at To support our surmise, we approvingly cited two cases: cert. denied, a challenge to a state high school athletic association that kept boys from playing on girls' interscholastic volleyball teams in Arizona; and Louisiana High School Athletic a parochial school's attack on the racially segregated system of interscholastic high school athletics maintained by the athletic association. In each instance, the Court of Appeals treated the athletic association as a state actor. B Just as we foresaw in the "necessarily factbound inquiry," leads to the conclusion of state action here. The nominally private character of the Association is overborne by the pervasive entwinement of public institutions and public officials in its composition and workings, and there is no substantial reason to claim unfairness in applying constitutional standards to it. The Association is not an organization of natural persons acting on their own, but of schools, and of public schools to the extent of 84% of the total. Under the Association's bylaws, each member school is represented by its principal or a faculty member, who has a vote in selecting members of the governing legislative council and board of control from eligible principals, assistant principals, and superintendents. *299 Although the findings and prior opinions in this case include no express conclusion of law that public school officials act within the scope of their duties when they represent their institutions, no other view would be rational, the official nature of their involvement being shown in any number of ways. Interscholastic athletics obviously play an integral part in the public education of Tennessee, where nearly every public high school spends money on competitions among schools. Since a pickup system of interscholastic games would not do, these public teams need some mechanism to produce rules and regulate competition. The mechanism is an organization overwhelmingly composed of public school officials who select representatives (all of them public officials at the time in question here), who in turn adopt and enforce the rules that make the system work. Thus, by giving these jobs to the Association, the 290 public schools of Tennessee belonging to it can sensibly be seen as exercising their own authority to meet their own responsibilities. Unsurprisingly, then, the record indicates that half the council or board meetings documented here were held during official school hours, and that public schools have largely provided for the Association's financial support. A small portion of the Association's revenue comes from membership dues paid by the schools, and the principal part from gate receipts at tournaments among the member schools. Unlike mere public buyers of contract services, whose payments for services rendered do not convert the service providers into public actors, see -843, the schools here obtain membership in the service organization and give up sources of their own income to their collective association. The Association thus exercises the authority of the predominantly public schools to charge for admission to their games; the Association does not receive this money from the schools, but enjoys the schools' moneymaking capacity as its own. In sum, to the extent of 84% of its membership, the Association is an organization of public schools represented by their *300 officials acting in their official capacity to provide an integral element of secondary public schooling. There would be no recognizable Association, legal or tangible, without the public school officials, who do not merely control but overwhelmingly perform all but the purely ministerial acts by which the Association exists and functions in practical terms. Only the 16% minority of private school memberships prevents this entwinement of the Association and the public school system from being total and their identities totally indistinguishable. To complement the entwinement of public school officials with the Association from the bottom up, the State of Tennessee has provided for entwinement from top down. State Board members are assigned ex officio to serve as members of the board of control and legislative council, and the Association's ministerial employees are treated as state employees to the extent of being eligible for membership in the state retirement system. It is, of course, true that the time is long past when the close relationship between the surrogate association and its public members and public officials acting as such was attested frankly. As mentioned, the terms of the State Board's Rule expressly designating the Association as regulator of interscholastic athletics in public schools were deleted in 1996, the year after a Federal District Court held that the Association was a state actor because its rules were "caused, directed and controlled by the Tennessee Board of Education,"[3] *301 But the removal of the designation language from Rule 0520-1—2—.08 affected nothing but words. Today the State Board's member-designees continue to sit on the Association's committees as nonvoting members, and the State continues to welcome Association employees in its retirement scheme. The close relationship is confirmed by the Association's enforcement of the same preamendment rules and regulations reviewed and approved by the State Board (including the recruiting Rule challenged by Brentwood), and by the State Board's continued willingness to allow students to satisfy its physical education requirement by taking part in interscholastic athletics sponsored by the Association. The most one can say on the evidence is that the State Board once freely acknowledged the Association's official character but now does it by winks and nods.[4] The amendment to the Rule in 1996 affected candor but not the "momentum" of the Association's prior involvement with the State Board. 382 U. S., The District Court spoke to this point in finding that because of "custom and *302 practice," "the conduct of the parties has not materially changed" since 1996, "the connections between TSSAA and the State [being] still pervasive and entwined." The entwinement down from the State Board is therefore unmistakable, just as the entwinement up from the member public schools is overwhelming. Entwinement will support a conclusion that an ostensibly private organization ought to be charged with a public character and judged by constitutional standards; entwinement to the degree shown here requires it. C Entwinement is also the answer to the Association's several arguments offered to persuade us that the facts would not support a finding of state action under various criteria applied in other cases. These arguments are beside the point, simply because the facts justify a conclusion of state action under the criterion of entwinement, a conclusion in no sense unsettled merely because other criteria of state action may not be satisfied by the same facts. The Association places great stress, for example, on the application of a public function test, as exemplified in There, an apparently private school provided education for students whose special needs made it difficult for them to finish high school. The record, however, failed to show any tradition of providing public special education to students unable to cope with a regular school, who had historically been cared for (or ignored) according to private choice. It was true that various public school districts had adopted the practice of referring students to the school and paying their tuition, and no one disputed that providing the instruction aimed at a proper public objective and conferred a public benefit. But we held that the performance of such a public function did not permit a finding of state action on the part of the school unless the function performed was exclusively and traditionally *303 public, as it was not in that case. The Association argues that application of the public function criterion would produce the same result here, and we will assume, arguendo, that it would. But this case does not turn on a public function test, any more than had anything to do with entwinement of public officials in the special school. For the same reason, it avails the Association nothing to stress that the State neither coerced nor encouraged the actions complained of. "Coercion" and "encouragement" are like "entwinement" in referring to kinds of facts that can justify characterizing an ostensibly private action as public instead. Facts that address any of these criteria are significant, but no one criterion must necessarily be applied. When, therefore, the relevant facts show pervasive entwinement to the point of largely overlapping identity, the implication of state action is not affected by pointing out that the facts might not loom large under a different test. D This is not to say that all of the Association's arguments are rendered beside the point by the public officials' involvement in the Association, for after application of the entwinement criterion, or any other, there is a further potential issue, and the Association raises it. Even facts that suffice to show public action (or, standing alone, would require such a finding) may be outweighed in the name of some value at odds with finding public accountability in the circumstances. In Polk a defense lawyer's actions were deemed private even though she was employed by the county and was acting within the scope of her duty as a public defender. Full-time public employment would be conclusive of state action for some purposes, see accord, n. 18, but not when the employee is doing a defense lawyer's primary job; then, the public defender does "not ac[t] on behalf of the State; he is the State's adversary." Polk at *304 323, n. 13. The state-action doctrine does not convert opponents into virtual agents. The assertion of such a countervailing value is the nub of each of the Association's two remaining arguments, neither of which, however, persuades us. The Association suggests, first, that reversing the judgment here will somehow trigger an epidemic of unprecedented federal litigation. Brief for Respondents 35. Even if that might be counted as a good reason for a Polk decision to call the Association's action private, the record raises no reason for alarm here. Save for the Sixth Circuit, every Court of Appeals to consider a state wide athletic association like the one here has found it a state actor. This majority view began taking shape even before which cited two such decisions approvingly, see (and this was six years after and on which the Sixth Circuit relied here). No one, however, has pointed to any explosion of 1983 cases against interscholastic athletic associations in the affected jurisdictions. Not to put too fine a point on it, two District Courts in Tennessee have previously held the Association itself to be a state actor, see Graham, at affirmance order, but there is no evident wave of litigation working its way across the State. A reversal of the judgment here portends nothing more than the harmony of an outlying Circuit with precedent otherwise uniform. Nor do we think there is anything to be said for the Association's contention that there is no need to treat it as a state actor since any public school applying the Association's rules is itself subject to suit under 1983 or Title IX of the Education Amendments of 1972, 20 U.S. C. 1681— 1688. Brief for Respondents 30. If Brentwood's claim were pushing at the edge of the class of possible defendant state actors, an argument about the social utility of expanding *305 that class would at least be on point, but because we are nowhere near the margin in this case, the Association is really asking for nothing less than a dispensation for itself. Its position boils down to saying that the Association should not be dressed in state clothes because other, concededly public actors are; that Brentwood should be kept out of court because a different plaintiff raising a different claim in a different case may find the courthouse open. Pleas for special treatment are hard to sell, although saying that does not, of course, imply anything about the merits of Brentwood's complaint; the issue here is merely whether Brentwood properly names the Association as a 1983 defendant, not whether it should win on its claim. The judgment of the Court of Appeals for the Sixth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Justice Thomas

dissenting

Brentwood Academy v. Tennessee Secondary School Athletic Assn.

2001-02-20

https://www.courtlistener.com/opinion/118403/brentwood-academy-v-tennessee-secondary-school-athletic-assn/

https://www.courtlistener.com/api/rest/v3/clusters/118403/

2000-018

We have never found state action based upon mere "entwinement." Until today, we have found a private organization's acts to constitute state action only when the organization performed a public function; was created, coerced, or encouraged by the government; or acted in a symbiotic relationship with the government. The majority's holding— that the Tennessee Secondary School Athletic Association's (TSSAA) enforcement of its recruiting rule is state action— not only extends state-action doctrine beyond its permissible limits but also encroaches upon the realm of individual freedom that the doctrine was meant to protect. I respectfully dissent. I Like the state-action requirement of the Fourteenth Amendment, the state-action element of 42 U.S. C. § 1983 excludes from its coverage "merely private conduct, however *306 discriminatory or wrongful." American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 50 (1999) (internal quotation marks omitted). "Careful adherence to the `state action' requirement" thus "preserves an area of individual freedom by limiting the reach of federal law and federal judicial power." Lugar v. Edmondson Oil Co., 457 U.S. 922, 936 (1982). The state-action doctrine also promotes important values of federalism, "avoid[ing] the imposition of responsibility on a State for conduct it could not control." National Collegiate Athletic Assn. v. Tarkanian, 488 U.S. 179, 191 (1988). Although we have used many different tests to identify state action, they all have a common purpose. Our goal in every case is to determine whether an action "can fairly be attributed to the State." Blum v. Yaretsky, 457 U.S. 991, 1004 (1982); American Mfrs., supra, at 52. A Regardless of these various tests for state action, common sense dictates that the TSSAA's actions cannot fairly be attributed to the State, and thus cannot constitute state action. The TSSAA was formed in 1925 as a private corporation to organize interscholastic athletics and to sponsor tournaments among its member schools. Any private or public secondary school may join the TSSAA by signing a contract agreeing to comply with its rules and decisions. Although public schools currently compose 84% of the TSSAA's membership, the TSSAA does not require that public schools constitute a set percentage of its membership, and, indeed, no public school need join the TSSAA. The TSSAA's rules are enforced not by a state agency but by its own board of control, which comprises high school principals, assistant principals, and superintendents, none of whom must work at a public school. Of course, at the time the recruiting rule was enforced in this case, all of the board members happened to be public school officials. However, each board member acts in *307 a representative capacity on behalf of all the private and public schools in his region of Tennessee, and not simply his individual school. The State of Tennessee did not create the TSSAA. The State does not fund the TSSAA and does not pay its employees.[1] In fact, only 4% of the TSSAA's revenue comes from the dues paid by member schools; the bulk of its operating budget is derived from gate receipts at tournaments it sponsors. The State does not permit the TSSAA to use stateowned facilities for a discounted fee, and it does not exempt the TSSAA from state taxation. No Tennessee law authorizes the State to coordinate interscholastic athletics or empowers another entity to organize interscholastic athletics on behalf of the State.[2] The only state pronouncement acknowledging *308 the TSSAA's existence is a rule providing that the State Board of Education permits public schools to maintain membership in the TSSAA if they so choose.[3] Moreover, the State of Tennessee has never had any involvement in the particular action taken by the TSSAA in this case: the enforcement of the TSSAA's recruiting rule prohibiting members from using "undue influence" on students or their parents or guardians "to secure or to retain a student for athletic purposes." App. 115. There is no indication that the State has ever had any interest in how schools choose to regulate recruiting.[4] In fact, the TSSAA's authority to enforce its recruiting rule arises solely from the voluntary membership contract that each member school signs, agreeing to conduct its athletics in accordance with the rules and decisions of the TSSAA. B Even approaching the issue in terms of any of the Court's specific state-action tests, the conclusion is the same: The TSSAA's enforcement of its recruiting rule against Brentwood Academy is not state action. In applying these tests, *309 courts of course must place the burden of persuasion on the plaintiff, not the defendant, because state action is an element of a § 1983 claim. American Mfrs., 526 U. S., at 49-50; West v. Atkins, 487 U.S. 42, 48 (1988). The TSSAA has not performed a function that has been "traditionally exclusively reserved to the State." Jackson v. Metropolitan Edison Co., 419 U.S. 345, 352 (1974). The organization of interscholastic sports is neither a traditional nor an exclusive public function of the States. Widespread organization and administration of interscholastic contests by schools did not begin until the 20th century. See M. Lee, A History of Physical Education and Sports in the U. S. A. 73 (1983) (explaining that what little interscholastic athletics there was in the 19th century "came almost entirely in the closing decade of the century and was largely pupil inspired, pupil controlled, and pupil coached"); id., at 68, 146 (stating that no control of high school sports occurred until 1896, when a group of teachers in Wisconsin set up a committee to control such contests, and pointing out that "[i]t was several years before the idea caught on in other states"). Certainly, in Tennessee, the State did not even show an interest in interscholastic athletics until 47 years after the TSSAA had been in existence and had been orchestrating athletic contests throughout the State. Even then, the State Board of Education merely acquiesced in the TSSAA's actions and did not assume the role of regulating interscholastic athletics. Cf. Blum, 457 U. S., at 1004-1005 ("Mere approval of or acquiescence in the initiatives of a private party is not sufficient to justify holding the State responsible for those initiatives . . ."); see also Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 164-165 (1978). The TSSAA no doubt serves the public, particularly the public schools, but the mere provision of a service to the public does not render such provision a traditional and exclusive public function. See RendellBaker v. Kohn, 457 U.S. 830, 842 (1982). *310 It is also obvious that the TSSAA is not an entity created and controlled by the government for the purpose of fulfilling a government objective, as was Amtrak in Lebron v. National Railroad Passenger Corporation, 513 U.S. 374, 394 (1995). See also Pennsylvania v. Board of Directors of City Trusts of Philadelphia, 353 U.S. 230 (1957) (per curiam) (holding that a state agency created under state law was a state actor). Indeed, no one claims that the State of Tennessee played any role in the creation of the TSSAA as a private corporation in 1925. The TSSAA was designed to fulfill an objective—the organization of interscholastic athletic tournaments—that the government had not contemplated, much less pursued. And although the board of control currently is composed of public school officials, and although public schools currently account for the majority of the TSSAA's membership, this is not required by the TSSAA's constitution. In addition, the State of Tennessee has not "exercised coercive power or . . . provided such significant encouragement [to the TSSAA], either overt or covert," Blum, 457 U. S., at 1004, that the TSSAA's regulatory activities must in law be deemed to be those of the State. The State has not promulgated any regulations of interscholastic sports, and nothing in the record suggests that the State has encouraged or coerced the TSSAA in enforcing its recruiting rule. To be sure, public schools do provide a small portion of the TSSAA's funding through their membership dues, but no one argues that these dues are somehow conditioned on the TSSAA's enactment and enforcement of recruiting rules.[5]*311 Likewise, even if the TSSAA were dependent on state funding to the extent of 90%, as was the case in Blum, instead of less than 4%, mere financial dependence on the State does not convert the TSSAA's actions into acts of the State. See Blum, supra, at 1011; Rendell-Baker, supra, at 840; see also Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 173 (1972) ("The Court has never held, of course, that discrimination by an otherwise private entity would be violative of the Equal Protection Clause if the private entity receives any sort of benefit or service at all from the State . . ."). Furthermore, there is no evidence of "joint participation," Lugar, 457 U. S., at 941-942, between the State and the TSSAA in the TSSAA's enforcement of its recruiting rule. The TSSAA's board of control enforces its recruiting rule solely in accordance with the authority granted to it under the contract that each member signs. Finally, there is no "symbiotic relationship" between the State and the TSSAA. Moose Lodge, supra, at 175; cf. Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961). Contrary to the majority's assertion, see ante, at 299-300, the TSSAA's "fiscal relationship with the State is not different from that of many contractors performing services for the government." Rendell-Baker, supra, at 843. The TSSAA provides a service—the organization of athletic tournaments—in exchange for membership dues and gate fees, just as a vendor could contract with public schools to sell refreshments at school events. Certainly the public school could sell its own refreshments, yet the existence of that option does not transform the service performed by the contractor into a state action. Also, there is no suggestion in this case that, as was the case in Burton, the State profits from the TSSAA's decision to enforce its recruiting rule. *312 Because I do not believe that the TSSAA's action of enforcing its recruiting rule is fairly attributable to the State of Tennessee, I would affirm. II Although the TSSAA's enforcement activities cannot be considered state action as a matter of common sense or under any of this Court's existing theories of state action, the majority presents a new theory. Under this theory, the majority holds that the combination of factors it identifies evidences "entwinement" of the State with the TSSAA, and that such entwinement converts private action into state action. Ante, at 296-297. The majority does not define "entwinement," and the meaning of the term is not altogether clear. But whatever this new "entwinement" theory may entail, it lacks any support in our state-action jurisprudence. Although the majority asserts that there are three examples of entwinement analysis in our cases, there is no case in which we have rested a finding of state action on entwinement alone. Two of the cases on which the majority relies do not even use the word "entwinement." See Lebron v. National Railroad Passenger Corporation, supra; Pennsylvania v. Board of Directors of City Trusts of Philadelphia, supra. Lebron concerned the status of Amtrak, a corporation that Congress created and placed under Government control for the specific purpose of achieving a governmental objective (namely, to avert the threatened extinction of passenger train service in the United States). 513 U.S., at 383, 386. Without discussing any notion of entwinement, we simply held that, when "the Government creates a corporation by special law, for the furtherance of governmental objectives, and retains for itself permanent authority to appoint a majority of the directors of that corporation, the corporation is part of the Government for purposes of the First Amendment." Id., at 400. Similarly, in *313 City Trusts, we did not consider entwinement when we addressed the question whether an agency established by state law was a state actor. See 353 U.S., at 231. In that case, the Pennsylvania Legislature passed a law creating a board of directors to operate a racially segregated school for orphans. Ibid. Without mentioning "entwinement," we held that, because the board was a state agency, its actions were attributable to the State. Ibid. The majority's third example, Evans v. Newton, 382 U.S. 296 (1966), lends no more support to an "entwinement" theory than do Lebron and City Trusts. Although Evans at least uses the word "entwined," 382 U.S., at 299 ("Conduct that is formally `private' may become so entwined with governmental policies or so impregnated with a governmental character as to become subject to the constitutional limitations placed upon state action"), we did not discuss entwinement as a distinct concept, let alone one sufficient to transform a private entity into a state actor when traditional theories of state action do not. On the contrary, our analysis rested on the recognition that the subject of the dispute, a park, served a "public function," much like a fire department or a police department. Id., at 302. A park, we noted, is a "public facility" that "serves the community." Id., at 301— 302. Even if the city severed all ties to the park and placed its operation in private hands, the park still would be "municipal in nature," analogous to other public facilities that have given rise to a finding of state action: the streets of a company town in Marsh v. Alabama, 326 U.S. 501 (1946), the elective process in Terry v. Adams, 345 U.S. 461 (1953), and the transit system in Public Util. Comm'n of D. C. v. Pollak, 343 U.S. 451 (1952). 382 U.S., at 301-302. Because the park served public functions, the private trustees operating the park were considered to be state actors.[6] *314 These cases, therefore, cannot support the majority's "entwinement" theory. Only Evans speaks of entwinement at all, and it does not do so in the same broad sense as does the majority.[7] Moreover, these cases do not suggest that the TSSAA's activities can be considered state action, whether the label for the state-action theory is "entwinement" or anything else. * * * Because the majority never defines "entwinement," the scope of its holding is unclear. If we are fortunate, the majority's fact-specific analysis will have little bearing beyond this case. But if the majority's new entwinement test develops in future years, it could affect many organizations that foster activities, enforce rules, and sponsor extracurricular competition among high schools—not just in athletics, but in such diverse areas as agriculture, mathematics, music, marching bands, forensics, and cheerleading. Indeed, this entwinement test may extend to other organizations that are composed of, or controlled by, public officials or public entities, such as firefighters, policemen, teachers, cities, or counties. *315 I am not prepared to say that any private organization that permits public entities and public officials to participate acts as the State in anything or everything it does, and our state-action jurisprudence has never reached that far. The state-action doctrine was developed to reach only those actions that are truly attributable to the State, not to subject private citizens to the control of federal courts hearing § 1983 actions. I respectfully dissent.

We have never found state action based upon mere "entwinement" Until today, we have found a private organization's acts to constitute state action only when the organization performed a public function; was created, coerced, or encouraged by the government; or acted in a symbiotic relationship with the government The majority's holding— that the Tennessee Secondary School Athletic Association's (TSSAA) enforcement of its recruiting rule is state action— not only extends state-action doctrine beyond its permissible limits but also encroaches upon the realm of individual freedom that the doctrine was meant to protect I respectfully dissent I Like the state-action requirement of the Fourteenth Amendment, the state-action element of 42 US C 1983 excludes from its coverage "merely private conduct, however *306 discriminatory or wrongful" American Mut Ins "Careful adherence to the `state action' requirement" thus "preserves an area of individual freedom by limiting the reach of federal law and federal judicial power" The state-action doctrine also promotes important values of federalism, "avoid[ing] the imposition of responsibility on a State for conduct it could not control" National Collegiate Athletic Although we have used many different tests to identify state action, they all have a common purpose Our goal in every case is to determine whether an action "can fairly be attributed to the State" ; American A Regardless of these various tests for state action, common sense dictates that the TSSAA's actions cannot fairly be attributed to the State, and thus cannot constitute state action The TSSAA was formed in 1925 as a private corporation to organize interscholastic athletics and to sponsor tournaments among its member schools Any private or public secondary school may join the TSSAA by signing a contract agreeing to comply with its rules and decisions Although public schools currently compose 84% of the TSSAA's membership, the TSSAA does not require that public schools constitute a set percentage of its membership, and, indeed, no public school need join the TSSAA The TSSAA's rules are enforced not by a state agency but by its own board of control, which comprises high school principals, assistant principals, and superintendents, none of whom must work at a public school Of course, at the time the recruiting rule was enforced in this case, all of the board members happened to be public school officials However, each board member acts in *307 a representative capacity on behalf of all the private and public schools in his region of Tennessee, and not simply his individual school The State of Tennessee did not create the TSSAA The State does not fund the TSSAA and does not pay its employees[1] In fact, only 4% of the TSSAA's revenue comes from the dues paid by member schools; the bulk of its operating budget is derived from gate receipts at tournaments it sponsors The State does not permit the TSSAA to use stateowned facilities for a discounted fee, and it does not exempt the TSSAA from state taxation No Tennessee law authorizes the State to coordinate interscholastic athletics or empowers another entity to organize interscholastic athletics on behalf of the State[2] The only state pronouncement acknowledging *308 the TSSAA's existence is a rule providing that the State Board of Education permits public schools to maintain membership in the TSSAA if they so choose[3] Moreover, the State of Tennessee has never had any involvement in the particular action taken by the TSSAA in this case: the enforcement of the TSSAA's recruiting rule prohibiting members from using "undue influence" on students or their parents or guardians "to secure or to retain a student for athletic purposes" App 115 There is no indication that the State has ever had any interest in how schools choose to regulate recruiting[4] In fact, the TSSAA's authority to enforce its recruiting rule arises solely from the voluntary membership contract that each member school signs, agreeing to conduct its athletics in accordance with the rules and decisions of the TSSAA B Even approaching the issue in terms of any of the Court's specific state-action tests, the conclusion is the same: The TSSAA's enforcement of its recruiting rule against Brentwood Academy is not state action In applying these tests, *309 courts of course must place the burden of persuasion on the plaintiff, not the defendant, because state action is an element of a 1983 claim American -; The TSSAA has not performed a function that has been "traditionally exclusively reserved to the State" The organization of interscholastic sports is neither a traditional nor an exclusive public function of the States Widespread organization and administration of interscholastic contests by schools did not begin until the 20th century See M Lee, A History of Physical Education and Sports in the U S A 73 (1983) (explaining that what little interscholastic athletics there was in the 19th century "came almost entirely in the closing decade of the century and was largely pupil inspired, pupil controlled, and pupil coached"); Certainly, in Tennessee, the State did not even show an interest in interscholastic athletics until 47 years after the TSSAA had been in existence and had been orchestrating athletic contests throughout the State Even then, the State Board of Education merely acquiesced in the TSSAA's actions and did not assume the role of regulating interscholastic athletics 457 U S, at -1005 ; see also Flagg Bros, The TSSAA no doubt serves the public, particularly the public schools, but the mere provision of a service to the public does not render such provision a traditional and exclusive public function See *310 It is also obvious that the TSSAA is not an entity created and controlled by the government for the purpose of fulfilling a government objective, as was Amtrak in See also (holding that a state agency created under state law was a state actor) Indeed, no one claims that the State of Tennessee played any role in the creation of the TSSAA as a private corporation in 1925 The TSSAA was designed to fulfill an objective—the organization of interscholastic athletic tournaments—that the government had not contemplated, much less pursued And although the board of control currently is composed of public school officials, and although public schools currently account for the majority of the TSSAA's membership, this is not required by the TSSAA's constitution In addition, the State of Tennessee has not "exercised coercive power or provided such significant encouragement [to the TSSAA], either overt or covert," 457 U S, at that the TSSAA's regulatory activities must in law be deemed to be those of the State The State has not promulgated any regulations of interscholastic sports, and nothing in the record suggests that the State has encouraged or coerced the TSSAA in enforcing its recruiting rule To be sure, public schools do provide a small portion of the TSSAA's funding through their membership dues, but no one argues that these dues are somehow conditioned on the TSSAA's enactment and enforcement of recruiting rules[5]*311 Likewise, even if the TSSAA were dependent on state funding to the extent of 90%, as was the case in instead of less than 4%, mere financial dependence on the State does not convert the TSSAA's actions into acts of the State See ; ; see also Moose No Furthermore, there is no evidence of "joint participation," -942, between the State and the TSSAA in the TSSAA's enforcement of its recruiting rule The TSSAA's board of control enforces its recruiting rule solely in accordance with the authority granted to it under the contract that each member signs Finally, there is no "symbiotic relationship" between the State and the TSSAA Moose ; cf Contrary to the majority's assertion, see ante, at 299-300, the TSSAA's "fiscal relationship with the State is not different from that of many contractors performing services for the government" The TSSAA provides a service—the organization of athletic tournaments—in exchange for membership dues and gate fees, just as a vendor could contract with public schools to sell refreshments at school events Certainly the public school could sell its own refreshments, yet the existence of that option does not transform the service performed by the contractor into a state action Also, there is no suggestion in this case that, as was the case in Burton, the State profits from the TSSAA's decision to enforce its recruiting rule *312 Because I do not believe that the TSSAA's action of enforcing its recruiting rule is fairly attributable to the State of Tennessee, I would affirm II Although the TSSAA's enforcement activities cannot be considered state action as a matter of common sense or under any of this Court's existing theories of state action, the majority presents a new theory Under this theory, the majority holds that the combination of factors it identifies evidences "entwinement" of the State with the TSSAA, and that such entwinement converts private action into state action Ante, at 296-297 The majority does not define "entwinement," and the meaning of the term is not altogether clear But whatever this new "entwinement" theory may entail, it lacks any support in our state-action jurisprudence Although the majority asserts that there are three examples of entwinement analysis in our cases, there is no case in which we have rested a finding of state action on entwinement alone Two of the cases on which the majority relies do not even use the word "entwinement" See Lebron concerned the status of Amtrak, a corporation that Congress created and placed under Government control for the specific purpose of achieving a governmental objective (namely, to avert the threatened extinction of passenger train service in the United States) 386 Without discussing any notion of entwinement, we simply held that, when "the Government creates a corporation by special law, for the furtherance of governmental objectives, and retains for itself permanent authority to appoint a majority of the directors of that corporation, the corporation is part of the Government for purposes of the First Amendment" Id, Similarly, in *313 City Trusts, we did not consider entwinement when we addressed the question whether an agency established by state law was a state actor See 353 US, at 231 In that case, the Pennsylvania Legislature passed a law creating a board of directors to operate a racially segregated school for orphans Ibid Without mentioning "entwinement," we held that, because the board was a state agency, its actions were attributable to the State Ibid The majority's third example, Evans v Newton, 382 US 296 lends no more support to an "entwinement" theory than do Lebron and City Trusts Although Evans at least uses the word "entwined," 382 US, at 299 we did not discuss entwinement as a distinct concept, let alone one sufficient to transform a private entity into a state actor when traditional theories of state action do not On the contrary, our analysis rested on the recognition that the subject of the dispute, a park, served a "public function," much like a fire department or a police department Id, A park, we noted, is a "public facility" that "serves the community" Id, at 301— 302 Even if the city severed all ties to the park and placed its operation in private hands, the park still would be "municipal in nature," analogous to other public facilities that have given rise to a finding of state action: the streets of a company town in Marsh v Alabama, 326 US 1 the elective process in Terry v Adams, 345 US 461 and the transit system in Public Util Comm'n of D C v Pollak, 343 US 451 382 US, at 301-302 Because the park served public functions, the private trustees operating the park were considered to be state actors[6] *314 These cases, therefore, cannot support the majority's "entwinement" theory Only Evans speaks of entwinement at all, and it does not do so in the same broad sense as does the majority[7] Moreover, these cases do not suggest that the TSSAA's activities can be considered state action, whether the label for the state-action theory is "entwinement" or anything else * * * Because the majority never defines "entwinement," the scope of its holding is unclear If we are fortunate, the majority's fact-specific analysis will have little bearing beyond this case But if the majority's new entwinement test develops in future years, it could affect many organizations that foster activities, enforce rules, and sponsor extracurricular competition among high schools—not just in athletics, but in such diverse areas as agriculture, mathematics, music, marching bands, forensics, and cheerleading Indeed, this entwinement test may extend to other organizations that are composed of, or controlled by, public officials or public entities, such as firefighters, policemen, teachers, cities, or counties *315 I am not prepared to say that any private organization that permits public entities and public officials to participate acts as the State in anything or everything it does, and our state-action jurisprudence has never reached that far The state-action doctrine was developed to reach only those actions that are truly attributable to the State, not to subject private citizens to the control of federal courts hearing 1983 actions I respectfully dissent

Justice Souter

majority

Suitum v. Tahoe Regional Planning Agency

1997-05-27

https://www.courtlistener.com/opinion/118116/suitum-v-tahoe-regional-planning-agency/

https://www.courtlistener.com/api/rest/v3/clusters/118116/

1996-060

Petitioner Bernadine Suitum owns land near the Nevada shore of Lake Tahoe. Respondent Tahoe Regional Planning Agency, which regulates land use in the region, determined that Suitum's property is ineligible for development but entitled to receive certain allegedly valuable "Transferable Development Rights" (TDR's). Suitum has brought an action for compensation under Rev. Stat. § 1979, 42 U.S. C. § 1983, claiming that the agency's determinations amounted to a regulatory taking of her property. While the pleadings raise issues about the significance of the TDR's both to the claim that a taking has occurred and to the constitutional requirement of just compensation, we have no occasion to decide, and we do not decide, whether or not these TDR's may be considered in deciding the issue whether there has been a taking in this case, as opposed to the issue whether just compensation has been afforded for such a taking. The sole question here is whether the claim is ripe for adjudication, *729 even though Suitum has not attempted to sell the development rights she has or is eligible to receive. We hold that it is. I In 1969, Congress approved the Tahoe Regional Planning Compact between the States of California and Nevada, creating respondent as an interstate agency to regulate development in the Lake Tahoe basin. See Lake Country Estates, Inc. v. Tahoe Regional Planning Agency, 440 U.S. 391, 394 (1979). After the 1969 compact had proven inadequate for protection of the lake and its environment, the States proposed and Congress approved an amendment in 1980, requiring the agency to adopt a plan barring any development exceeding such specific "environmental threshold carrying capacities" as the agency might find appropriate. Pub. L. 96-551, Arts. I(b), V(b), V(g), 94 Stat. 3234, 3239-3241.[1] In 1987, the agency adopted a new Regional Plan providing for an "Individual Parcel Evaluation System" (IPES) to rate the suitability of vacant residential parcels for building and other modification. Tahoe Regional Planning Agency Code of Ordinances, ch. 37 (TRPA Code). Whereas any property must attain a minimum IPES score to qualify for construction, id., § 37.8.E; App. 145, an undeveloped parcel in certain areas carrying runoff into the watershed (known as "Stream Environment Zones" (SEZ's)) receives an IPES score of zero, TRPA Code § 37.4.A(3). With limited exceptions not relevant here, the agency permits no "additional land coverage or other permanent land disturbance" on such a parcel. Id., § 20.4. *730 Although the agency's 1987 plan does not provide for the variances and exceptions of conventional land-use schemes, it addresses the potential sharpness of its restrictions by granting property owners TDR's that may be sold to owners of parcels eligible for construction, id., §§ 20.3.C, 34.0 to 34.3. There are three kinds of residential TDR's. An owner needs both a "Residential Development Right" and a "Residential Allocation" to place a residential unit on a buildable parcel, id., §§ 21.6.C, 33.2.A; the latter permits construction to begin in a specific calendar year, but expires at year's end, id., § 33.2.B(3)(b). An owner must also have "Land Coverage Rights" for each square foot of impermeable cover placed upon land. App. 145; see also TRPA Code, ch. 20. All owners of vacant residential parcels that existed at the effective date of the 1987 plan (July 1, 1987), including SEZ parcels, automatically receive one Residential Development Right, id., § 21.6.A; owners of SEZ property may obtain and transfer bonus points equivalent to three additional Residential Development Rights, id., §§ 35.2.C, 35.2.D. SEZ property owners also receive Land Coverage Rights authorizing coverage of an area equal to 1% of the surface area of their land. Id., §§ 20.3.A, 37.11. Finally, SEZ owners, like other property owners, may apply for a Residential Allocation, awarded by local jurisdictions in random drawings each year.[2]Id., § 33.2.B; App. 98-99. All three kinds of TDR's may be transferred for the benefit of any eligible property in the Lake Tahoe region, subject to approval by the agency based on the eligibility of the receiving parcel for development. TRPA Code §§ 20.3.C, 34.1 to 34.3. In 1972, Suitum and her late husband bought an undeveloped lot in Washoe County, Nevada, within the agency's jurisdiction, and 17 years later, after adoption of the 1987 *731 Regional Plan, Suitum obtained a Residential Allocation through Washoe County's annual drawing. When she then applied to the agency for permission to construct a house on her lot, the agency determined that her property was located within a SEZ, assigned it an IPES score of zero, and denied permission to build. Suitum appealed the denial to the agency's governing board, which itself denied relief. After the agency turned down the request for a building permit, Suitum made no effort to transfer any of the TDR's that were hers under the 1987 plan, and there is no dispute that she still has the one Residential Development Right that owners of undeveloped lots automatically received, plus the Land Coverage Rights for 183 square feet that she got as the owner of 18,300 square feet of SEZ land. It is also common ground that Suitum has the right to receive three "bonus" Residential Development Rights. Although Suitum has questioned the certainty that she would obtain a new Residential Allocation if she sought one, the agency has represented to this Court that she undoubtably would, see n. 2, supra. Instead, Suitum brought this 42 U.S. C. § 1983 action alleging that in denying her the right to construct a house on her lot, the agency's restrictions deprived her of "all reasonable and economically viable use" of her property, and so amounted to a taking of her property without just compensation in violation of the Fifth and Fourteenth Amendments.[3] App. 15, 16. The agency responded by objecting, among other things, that Suitum's takings claim was not ripe due to her "failure to obtain a final decision by TRPA as to the amount of development . . . that may be allowed by" the agency. Id., at 10. On cross-motions for summary judgment, the District Court ordered supplemental briefing on *732 the nature of Suitum's TDR's, including "what [TDR's] can be transferred in [Suitum's] case and the procedures, prerequisites and value of such transfer as applicable in this case." Id., at 89. The agency introduced an affidavit from a real estate appraiser, whose opinion was that the Residential Development Right that Suitum already has, and the three more to which she is entitled, have a market value between $1,500 and $2,500 each; that her Land Coverage Rights can be sold for $6 to $12 per square foot ($1,098—$2,196 total); and that her lot devoid of all TDR's would sell for $7,125 to $16,750. Id., at 131-132. The appraiser also said that if Suitum were to obtain a Residential Allocation and sell it with a Development Right, together they would bring between $30,000 and $35,000. Ibid. As if in spite of the figures supplied by its own affidavit, however, the agency maintained that the "actual benefits of the [TDR] program for [Suitum] . . . can only be known if she pursues an appropriate [transfer] application," with the result that Suitum's claim was not ripe for adjudication. Id., at 91. For her part, Suitum insisted that trying to transfer her TDR's would be an "`idle and futile act' " because the TDR program is a "sham,"[4] and she supplied the affidavit of one of the agency's former employees whose view was that "there is little to no value to [Suitum's TDR's] at the present time as . . . either [there is] no market for them or the procedure for transferring one particular right would restrict the opportunity to transfer a remaining right." Id., at 135.[5] The District Court decided that Suitum's claim was not ripe for consideration because "[a]s things now stand, there *733 is no final decision as to how [Suitum] will be allowed to use her property." No. CV—N-91-040—ECR (D. Nev., Mar. 30, 1994), App. to Pet. for Cert. C-3. Although the court found that "there is significant value in the transfer of [Suitum's TDR's], . . . until [specific] values attributable to the transfer program are known, the court cannot realistically assess whether and to what extent [the agency's] regulations have frustrated [Suitum's] reasonable expectations." Id., at C-3 to C-4. The Court of Appeals for the Ninth Circuit affirmed this ripeness ruling for the like reason that "[w]ithout an application for the transfer of development rights" there would be no way to "know the regulations' full economic impact or the degree of their interference with [Suitum's] reasonable investment-backed expectations," and without action on a transfer application there would be no "`final decision from [the agency] regarding the application of the regulation[s] to the property at issue.' "[6] 80 F.3d 359, 362-363 (1996). We granted certiorari to consider the ripeness of Suitum's takings claim, 519 U.S. 926 (1996), and now reverse. II The only issue presented is whether Suitum's claim of a regulatory taking of her land in violation of the Fifth and Fourteenth Amendments is ready for judicial review under prudential ripeness principles.[7] There are two independent *734 prudential hurdles to a regulatory takings claim brought against a state entity in federal court. Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), explained that a plaintiff must demonstrate that she has both received a "final decision regarding the application of the [challenged] regulations to the property at issue" from "the government entity charged with implementing the regulations," id., at 186, and sought "compensation through the procedures the State has provided for doing so," id., at 194. The first requirement follows from the principle that only a regulation that "goes too far," Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922), results in a taking under the Fifth Amendment, see, e. g., MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 348 (1986) ("A court cannot determine whether a regulation has gone `too far' unless it knows how far the regulation goes"); see also Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1014-1019 (1992) (regulation "`goes too far' " and results in a taking "at leas[t] in the extraordinary circumstance when no productive or economically beneficial use of land is permitted"). The second hurdle stems from the Fifth Amendment's proviso that only takings without "just compensation" infringe that Amendment; "if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation," Williamson County, supra, at 195. Because only the "final decision" prong of Williamson was addressed below and briefed before this Court, we confine our discussion here to that issue.[8] *735 A In holding Suitum's claim to be unripe, the Ninth Circuit agreed with the agency's argument that Suitum had failed to obtain a final and authoritative decision from the agency sufficient to satisfy the first prong of Williamson County, supra. Although it is unclear whether the agency still urges precisely that position before this Court, see, e. g., Brief for Respondent 21 (conceding that "[w]e know the full extent of the regulation's impact in restricting petitioner's development of her own land"), we think it important to emphasize that the rationale adopted in the decision under review is unsupported by our precedents. Agins v. City of Tiburon, 447 U.S. 255 (1980), is the first case in which this Court employed a notion of ripeness in declining to reach the merits of an as-applied regulatory takings claim.[9] In Agins, the landowners who challenged zoning *736 ordinances restricting the number of houses they could build on their property sued without seeking approval for any particular development on their land. We held that the only issue justiciable at that point was whether mere enactment of the statute amounted to a taking.[10]Id., at 260. Without employing the term "ripeness," the Court explained that because the owners "ha[d] not submitted a plan for development of their property as the [challenged] ordinances permit[ted], there [was] as yet no concrete controversy regarding the application of the specific zoning provisions." Ibid. The following Term, Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U.S. 264 (1981), toughened our nascent ripeness requirement. There, coal producers and landowners challenged the enactment of the Surface Mining Control and Reclamation Act of 1977, 30 U.S. C. § 1201 et seq., as a taking of their property. As in Agins, we concluded that an as-applied challenge was unripe, reasoning that "[t]here is no indication in the record that appellees ha[d] availed themselves of the opportunities provided by the Act to obtain administrative relief by requesting . . . a variance from the [applicable provisions of the Act]," 452 U.S., at 297.[11]Hodel thus held that where the regulatory regime *737 offers the possibility of a variance from its facial requirements, a landowner must go beyond submitting a plan for development and actually seek such a variance to ripen his claim. Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), confirmed Hodel `s holding. In Williamson County, a developer's plan to build a residential complex was rejected by the local planning commission as inconsistent with zoning ordinances and subdivision regulations in eight different respects. This Court acknowledged that "[r]espondent ha[d] submitted a plan for developing its property, and thus ha[d] passed beyond the Agins threshold," 473 U.S., at 187, but nonetheless held the takings challenge unripe, reasoning that "among the factors of particular significance in the [takings] inquiry are the economic impact of the challenged action and the extent to which it interferes with reasonable investment-backed expectations," id., at 191, "factors [that] simply cannot be evaluated until the administrative agency has arrived at a final, definitive position regarding how it will apply the regulations at issue to the particular land in question," ibid. Thus, a developer must at least "resort to the procedure for obtaining variances . . . [and obtain] a conclusive determination by the Commission whether it would allow" the proposed development, id., at 193, in order to ripen its takings claim. MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340 (1986), reaffirmed Williamson County `s requirement of a final agency position. In MacDonald, a developer purchased property and presented a tentative subdivision plan to the local planning commission. After the commission treated the proposal as inconsistent with the zoning regulations in several respects, the developer immediately filed suit. Without even relying on the character of the dry run in the submission of a merely tentative plan, we emphasized that in the course of litigation two state courts had given opinions that development of the property was possible *738 under the regulations in question, flatly contrary to the developer's conclusory allegation that the regulations required him to provide a greenbelt as a public gratuity. See 477 U.S., at 345-347. Hence, we held the claim unripe under the rationale of Williamson County: "`the effect [of] the Commission's application of the zoning ordinance . . . on the value of respondent's property . . . cannot be measured until a final decision is made as to how the regulations will be applied to [the developer's] property.' " MacDonald, supra, at 349 (quoting Williamson County, supra, at 199-200). Leaving aside the question of how definitive a local zoning decision must be to satisfy Williamson County `s demand for finality,[12] two points about the requirement are clear: it applies to decisions about how a takings plaintiff's own land may be used, and it responds to the high degree of discretion characteristically possessed by land-use boards in softening the strictures of the general regulations they administer. As the Court said in MacDonald, "local agencies charged with administering regulations governing property development are singularly flexible institutions; what they take with the one hand they may give back with the other." 477 U.S., at 350. When such flexibility or discretion may be brought to bear on the permissible use of property as singular as a *739 parcel of land, a sound judgment about what use will be allowed simply cannot be made by asking whether a parcel's characteristics or a proposal's details facially conform to the terms of the general use regulations. The demand for finality is satisfied by Suitum's claim, however, there being no question here about how the "regulations at issue [apply] to the particular land in question." Williamson County, supra, at 191. It is undisputed that the agency "has finally determined that petitioner's land lies entirely within an SEZ," Brief for Respondent 21, and that it may therefore permit "[n]o additional land coverage or other permanent land disturbance" on the parcel, TRPA Code § 20.4. Because the agency has no discretion to exercise over Suitum's right to use her land, no occasion exists for applying Williamson County `s requirement that a landowner take steps to obtain a final decision about the use that will be permitted on a particular parcel. The parties, of course, contest the relevance of the TDR's to the issue of whether a taking has occurred, but resolution of that legal issue will require no further agency action of the sort demanded by Williamson County. B The agency nonetheless argued below, and the lower courts agreed, see supra, at 732-733, that there remains a "final decision" for the agency to make: action on a possible application by Suitum to transfer the TDR's to which she is indisputably entitled. This is not, however, the type of "final decision" required by our Williamson County precedents. Those precedents addressed the virtual impossibility of determining what development will be permitted on a particular lot of land when its use is subject to the decision of a regulatory body invested with great discretion, which it has not yet even been asked to exercise. No such question is presented here. The parties agree on the particular TDR's to which Suitum is entitled, and no discretionary decision *740 must be made by any agency official for her to obtain them or to offer them for sale. The only decision left to the agency is approval of a particular transfer of TDR's to make certain that a given potential buyer may lawfully use them. But whether a particular sale of TDR's may be completed is quite different from whether TDR's are salable; so long as the particular buyer is not the only person who can lawfully buy, the rights would not be rendered unsalable even if the agency were to make a discretionary decision to kill a particular sale. And the class of buyers is not even arguably so limited here, where there is no question so far as the law is concerned that TDR's may be bought and used for the benefit of all sorts of land parcels and lots. C The agency's argument that Suitum's case is not ripe because no "`values attributable to [Suitum's TDR's] are known,' " Brief for Respondent 23 (quoting No. CV—N-91— 040—ECR (D. Nev., Mar. 30, 1994), App. to Pet. for Cert. C-4, is just a variation on the preceding position, and fares no better. First, as to Suitum's rights to receive TDR's that she may later sell, we have already noted that little or no uncertainty remains. Although the value of a Residential Development Right may well be greater if it is offered together with a Residential Allocation, and although Suitum must still enter the lottery for the latter, there is no discretionary decision to be made in determining whether she will get one; in fact, the probability of her getting one is "100 percent" according to the agency, see Tr. of Oral Arg. 40, since there are fewer applications than available allocations, see id., at 39-40. But even if that were not the case, as it probably will not always be, it would be unreasonable to require Suitum to enter the drawing in order to ripen her suit. The agency does not, and surely could not, maintain that if the odds of success in the allocation lottery were low, *741 Suitum's takings claim could be kept at bay from year to year until she actually won the drawing; such a rule would allow any local authority to stultify the Fifth Amendment's guarantee. Rather, in such circumstances, the value attributable to the allocation Suitum might or might not receive in the drawing would simply be discounted to reflect the mathematical likelihood of her obtaining one. Second, as to Suitum's right to transfer her TDR's, the only contingency apart from private market demand turns on the right of the agency to deny approval for a specific transfer on grounds that the buyer's use of the TDR's would violate the terms of the scheme or other local land-use regulation, and the right of a local regulatory body to deny transfer approval for the latter reason. See TRPA Code §§ 20.3.C, 34.2, 34.3. But even if these potential bars based on a buyer's intended use of TDR's should turn out to involve the same degree of discretion assumed in the Williamson County ripeness requirement, that discretion still would not render the value of the TDR's nearly as unknowable as the chances of particular development being permitted on a particular parcel in the absence of a zoning board decision that could quite lawfully be either yes or no. While a particular sale is subject to approval, salability is not, and the agency's own position assumes that there are many potential, lawful buyers for Suitum's TDR's, whose receipt of those rights would unquestionably be approved. The valuation of Suitum's TDR's is therefore simply an issue of fact about possible market prices, and one on which the District Court had considerable evidence before it, see supra, at 731-732.[13] Of course, as the agency appears to be saying, see, e. g., Brief for Respondent 22-23, the very best evidence of the value of Suitum's TDR's might be their actual *742 selling price (assuming, of course, that the sale were made in good faith and at arm's length). But similar determinations of market value are routinely made in judicial proceedings without the benefit of a market transaction in the subject property. See, e. g., United States v. 819.98 Acres of Land, More or Less, Located in Wasatch and Summit Counties, 78 F.3d 1468, 1469-1470 (CA10 1996) (upholding valuation of condemned land based on expert testimony relating to comparable sales and discounted cash flow); United States v. L. E. Cooke Co., 991 F.2d 336, 338-339 (CA6 1993) (same with respect to valuation of mineral rights leases); see also 5 J. Sackman, Nichols' Law of Eminent Domain § 23-01, p. 23-6 (rev. 3d ed. 1997) ("[I]t is well established that the value of . . .land taken or injured by the exercise of the power of eminent domain may be shown by opinion evidence"); see generally 4 id., § 12.02 (discussing establishment of market value of condemned land). While it is true that market value may be hard to calculate without a regular trade in TDR's, if Suitum is ready to proceed in spite of this difficulty, ripeness doctrine does not block her. In fact, the reason for the agency's objection is probably a concern that without much market experience in sales of TDR's, their market values will get low estimates. But this is simply one of the risks of regulatory pioneering, and the pioneer here is the agency, not Suitum. III Finally, the agency argues (for the first time, before this Court) that Suitum's claim is unripe under the "fitness for review" requirement of Abbott Laboratories v. Gardner, 387 U.S. 136 (1967). Abbott Laboratories arose on a petition under the Administrative Procedure Act (APA), 5 U.S. C. §§ 701-704 (1964 ed., Supp. II), by a group of drug manufacturers seeking review of a labeling regulation promulgated by the Commissioner of Food and Drugs (FDA) but not yet the subject of any enforcement action against the manufacturers. The petitioners claimed that the FDA lacked statutory *743 authority to impose the new labeling requirement; the FDA countered that the claim was not ripe for judicial review for want of any proceedings to enforce the regulation. The Court dealt with ripeness under a two-pronged test: "Without undertaking to survey the intricacies of the ripeness doctrine it is fair to say that its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." 387 U.S., at 148-149 (footnote omitted). Under the "fitness for review" prong, we first noted that the FDA's adoption of the labeling regulation was "final agency action" within the meaning of § 10 of the APA, 5 U.S. C. § 704, and then rejected the Government's argument that review must await enforcement. 387 U.S., at 149-152. We reasoned that "the impact of the regulations upon the petitioners is sufficiently direct and immediate as to render the issue appropriate for judicial review at this stage" because promulgation of the regulations "puts petitioners in a dilemma": "Either they must comply with the [labeling] requirement and incur the costs of changing over their promotional material and labeling or they must follow their present course and risk prosecution." Id., at 152 (internal quotation marks omitted). Similarly, the immediate impact of the regulation on the manufacturers satisfied the "hardship" prong: "Where the legal issue presented is fit for judicial resolution, and where a regulation requires an immediate and significant change in the plaintiffs' conduct of their affairs with serious *744 penalties attached to noncompliance," hardship has been demonstrated and "access to the courts . . . must be permitted." Id., at 153. Abbott Laboratories is not on point. The drug companies in that case were challenging the validity of a regulation as beyond the scope of the FDA's authority. Whatever the arguable merit of the FDA's position on ripeness may have been, it rested on the fact that the manufacturers could have precipitated their challenge (if they had wanted) by violating the regulation and defending any subsequent prosecution by placing the regulation's validity in question. Suitum is in a different position from the manufacturers. She does not challenge the validity of the agency's regulations; her litigating position assumes that the agency may validly bar her land development just as all agree it has actually done, and her only challenge to the TDR's raises a question about their value, not about the lawfulness of issuing them. Suitum seeks not to be free of the regulations but to be paid for their consequences, and even if for some odd reason she had decided to bring things to a head by building without a permit, a § 1983 action for money would not be a defense to an equity proceeding to enjoin development. Indeed, to the extent that Abbott Laboratories is in any sense instructive in the disposition of the case before us, it cuts directly against the agency: Suitum is just as definitively barred from taking any affirmative step to develop her land as the drug companies were bound to take affirmative steps to change their labels. The only discretionary step left to an agency in either situation is enforcement, not determining applicability. * * * Because we find that Suitum has received a "final decision" consistent with Williamson County `s ripeness requirement, we vacate the judgment of the Court of Appeals and remand for further proceedings consistent with this opinion. It is so ordered. *745 Justice Scalia, with whom Justice O'Connor and Justice Thomas join, concurring in part and concurring in the judgment.

Petitioner Bernadine Suitum owns land near the Nevada shore of Lake Tahoe. Respondent Tahoe Regional Planning Agency, which regulates land use in the region, determined that Suitum's property is ineligible for development but entitled to receive certain allegedly valuable "Transferable Development Rights" (TDR's). Suitum has brought an action for compensation under Rev. Stat. 1979, 4 U.S. C. 1983, claiming that the agency's determinations amounted to a regulatory taking of her property. While the pleadings raise issues about the significance of the TDR's both to the claim that a taking has occurred and to the constitutional requirement of just compensation, we have no occasion to decide, and we do not decide, whether or not these TDR's may be considered in deciding the issue whether there has been a taking in this case, as opposed to the issue whether just compensation has been afforded for such a taking. The sole question here is whether the claim is ripe for adjudication, *79 even though Suitum has not attempted to sell the development rights she has or is eligible to receive. We hold that it is. I In 1969, Congress approved the Tahoe Regional Planning Compact between the States of California and Nevada, creating respondent as an interstate agency to regulate development in the Lake Tahoe basin. See Lake Country Estates, After the 1969 compact had proven inadequate for protection of the lake and its environment, the States proposed and Congress approved an amendment in 1980, requiring the agency to adopt a plan barring any development exceeding such specific "environmental threshold carrying capacities" as the agency might find appropriate. Arts. I(b), V(b), V(g), 339-341.[1] In 1987, the agency adopted a new Regional Plan providing for an "Individual Parcel Evaluation System" (IPES) to rate the suitability of vacant residential parcels for building and other modification. Tahoe Regional Planning Agency Code of Ordinances, ch. 37 (TRPA Code). Whereas any property must attain a minimum IPES score to qualify for construction, 37.8.E; App. 145, an undeveloped parcel in certain areas carrying runoff into the watershed (known as "Stream Environment Zones" (SEZ's)) receives an IPES score of zero, TRPA Code 37.4.A(3). With limited exceptions not relevant here, the agency permits no "additional land coverage or other permanent land disturbance" on such a parcel. 0.4. *730 Although the agency's 1987 plan does not provide for the variances and exceptions of conventional land-use schemes, it addresses the potential sharpness of its restrictions by granting property owners TDR's that may be sold to owners of parcels eligible for construction, 0.3.C, 34.0 to 34.3. There are three kinds of residential TDR's. An owner needs both a "Residential Development Right" and a "Residential Allocation" to place a residential unit on a buildable parcel, 1.6.C, 33.A; the latter permits construction to begin in a specific calendar year, but expires at year's end, 33.B(3)(b). An owner must also have "Land Coverage Rights" for each square foot of impermeable cover placed upon land. App. 145; see also TRPA Code, ch. 0. All owners of vacant residential parcels that existed at the effective date of the 1987 plan (July 1, 1987), including SEZ parcels, automatically receive one Residential Development Right, 1.6.A; owners of SEZ property may obtain and transfer bonus points equivalent to three additional Residential Development Rights, 35.C, 35.D. SEZ property owners also receive Land Coverage Rights authorizing coverage of an area equal to 1% of the surface area of their land. 0.3.A, 37.11. Finally, SEZ owners, like other property owners, may apply for a Residential Allocation, awarded by local jurisdictions in random drawings each year.[] 33.B; App. 98-99. All three kinds of TDR's may be transferred for the benefit of any eligible property in the Lake Tahoe region, subject to approval by the agency based on the eligibility of the receiving parcel for development. TRPA Code 0.3.C, 34.1 to 34.3. In 197, Suitum and her late husband bought an undeveloped lot in Washoe Nevada, within the agency's jurisdiction, and 17 years later, after adoption of the 1987 *731 Regional Plan, Suitum obtained a Residential Allocation through Washoe 's annual drawing. When she then applied to the agency for permission to construct a house on her lot, the agency determined that her property was located within a SEZ, assigned it an IPES score of zero, and denied permission to build. Suitum appealed the denial to the agency's governing board, which itself denied relief. After the agency turned down the request for a building permit, Suitum made no effort to transfer any of the TDR's that were hers under the 1987 plan, and there is no dispute that she still has the one Residential Development Right that owners of undeveloped lots automatically received, plus the Land Coverage Rights for 183 square feet that she got as the owner of 18,300 square feet of SEZ land. It is also common ground that Suitum has the right to receive three "bonus" Residential Development Rights. Although Suitum has questioned the certainty that she would obtain a new Residential Allocation if she sought one, the agency has represented to this Court that she undoubtably would, see n. Instead, Suitum brought this 4 U.S. C. 1983 action alleging that in denying her the right to construct a house on her lot, the agency's restrictions deprived her of "all reasonable and economically viable use" of her property, and so amounted to a taking of her property without just compensation in violation of the Fifth and Fourteenth Amendments.[3] App. 15, 16. The agency responded by objecting, among other things, that Suitum's takings claim was not ripe due to her "failure to obtain a final decision by TRPA as to the amount of development that may be allowed by" the agency. On cross-motions for summary judgment, the District Court ordered supplemental briefing on *73 the nature of Suitum's TDR's, including "what [TDR's] can be transferred in [Suitum's] case and the procedures, prerequisites and value of such transfer as applicable in this case." The agency introduced an affidavit from a real estate appraiser, whose opinion was that the Residential Development Right that Suitum already has, and the three more to which she is entitled, have a market value between $1,500 and $,500 each; that her Land Coverage Rights can be sold for $6 to $1 per square foot ($1,098—$,196 total); and that her lot devoid of all TDR's would sell for $7,15 to $16,750. at 131-13. The appraiser also said that if Suitum were to obtain a Residential Allocation and sell it with a Development Right, together they would bring between $30,000 and $35,000. As if in spite of the figures supplied by its own affidavit, however, the agency maintained that the "actual benefits of the [TDR] program for [Suitum] can only be known if she pursues an appropriate [transfer] application," with the result that Suitum's claim was not ripe for adjudication. For her part, Suitum insisted that trying to transfer her TDR's would be an "`idle and futile act' " because the TDR program is a "sham,"[4] and she supplied the affidavit of one of the agency's former employees whose view was that "there is little to no value to [Suitum's TDR's] at the present time as either [there is] no market for them or the procedure for transferring one particular right would restrict the opportunity to transfer a remaining right."[5] The District Court decided that Suitum's claim was not ripe for consideration because "[a]s things now stand, there *733 is no final decision as to how [Suitum] will be allowed to use her property." No. CV—N-91-040—ECR (D. Nev., Mar. 30, 1994), App. to Pet. for Cert. C-3. Although the court found that "there is significant value in the transfer of [Suitum's TDR's], until [specific] values attributable to the transfer program are known, the court cannot realistically assess whether and to what extent [the agency's] regulations have frustrated [Suitum's] reasonable expectations." at C-3 to C-4. The Court of Appeals for the Ninth Circuit affirmed this ripeness ruling for the like reason that "[w]ithout an application for the transfer of development rights" there would be no way to "know the regulations' full economic impact or the degree of their interference with [Suitum's] reasonable investment-backed expectations," and without action on a transfer application there would be no "`final decision from [the agency] regarding the application of the regulation[s] to the property at issue.' "[6] 36-363 We granted certiorari to consider the ripeness of Suitum's takings claim, 519 U.S. 96 and now reverse. II The only issue presented is whether Suitum's claim of a regulatory taking of her land in violation of the Fifth and Fourteenth Amendments is ready for judicial review under prudential ripeness principles.[7] There are two independent *734 prudential hurdles to a regulatory takings claim brought against a state entity in federal court. Williamson Regional Planning 473 U.S. 17 explained that a plaintiff must demonstrate that she has both received a "final decision regarding the application of the [challenged] regulations to the property at issue" from "the government entity charged with implementing the regulations," and sought "compensation through the procedures the State has provided for doing so," The first requirement follows from the principle that only a regulation that "goes too far," Pennsylvania Coal 60 U.S. 393, (19), results in a taking under the Fifth Amendment, see, e. g., Sommer & ; see also (199) The second hurdle stems from the Fifth Amendment's proviso that only takings without "just compensation" infringe that Amendment; "if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation," Williamson Because only the "final decision" prong of Williamson was addressed below and briefed before this Court, we confine our discussion here to that issue.[8] *735 A In holding Suitum's claim to be unripe, the Ninth Circuit agreed with the agency's argument that Suitum had failed to obtain a final and authoritative decision from the agency sufficient to satisfy the first prong of Williamson Although it is unclear whether the agency still urges precisely that position before this Court, see, e. g., Brief for Respondent 1 (conceding that "[w]e know the full extent of the regulation's impact in restricting petitioner's development of her own land"), we think it important to emphasize that the rationale adopted in the decision under review is unsupported by our precedents. 447 U.S. 55 is the first case in which this Court employed a notion of ripeness in declining to reach the merits of an as-applied regulatory takings claim.[9] In Agins, the landowners who challenged zoning *736 ordinances restricting the number of houses they could build on their property sued without seeking approval for any particular development on their land. We held that the only issue justiciable at that point was whether mere enactment of the statute amounted to a taking.[10] at 60. Without employing the term "ripeness," the Court explained that because the owners "ha[d] not submitted a plan for development of their property as the [challenged] ordinances permit[ted], there [was] as yet no concrete controversy regarding the application of the specific zoning provisions." The following Term, 45 U.S. 64 toughened our nascent ripeness requirement. There, coal producers and landowners challenged the enactment of the Surface Mining Control and Reclamation Act of 1977, 30 U.S. C. 101 et seq., as a taking of their property. As in Agins, we concluded that an as-applied challenge was unripe, reasoning that "[t]here is no indication in the record that appellees ha[d] availed themselves of the opportunities provided by the Act to obtain administrative relief by requesting a variance from the [applicable provisions of the Act]," 45 U.S., at 97.[11]Hodel thus held that where the regulatory regime *737 offers the possibility of a variance from its facial requirements, a landowner must go beyond submitting a plan for development and actually seek such a variance to ripen his claim. Williamson Regional Planning 473 U.S. 17 confirmed Hodel `s holding. In Williamson a developer's plan to build a residential complex was rejected by the local planning commission as inconsistent with zoning ordinances and subdivision regulations in eight different respects. This Court acknowledged that "[r]espondent ha[d] submitted a plan for developing its property, and thus ha[d] passed beyond the Agins threshold," but nonetheless held the takings challenge unripe, reasoning that "among the factors of particular significance in the [takings] inquiry are the economic impact of the challenged action and the extent to which it interferes with reasonable investment-backed expectations," "factors [that] simply cannot be evaluated until the administrative agency has arrived at a final, definitive position regarding how it will apply the regulations at issue to the particular land in question," Thus, a developer must at least "resort to the procedure for obtaining variances [and obtain] a conclusive determination by the Commission whether it would allow" the proposed development, in order to ripen its takings claim. Sommer & reaffirmed Williamson `s requirement of a final agency position. In a developer purchased property and presented a tentative subdivision plan to the local planning commission. After the commission treated the proposal as inconsistent with the zoning regulations in several respects, the developer immediately filed suit. Without even relying on the character of the dry run in the submission of a merely tentative plan, we emphasized that in the course of litigation two state courts had given opinions that development of the property was possible *738 under the regulations in question, flatly contrary to the developer's conclusory allegation that the regulations required him to provide a greenbelt as a public gratuity. See -347. Hence, we held the claim unripe under the rationale of Williamson : "`the effect [of] the Commission's application of the zoning ordinance on the value of respondent's property cannot be measured until a final decision is made as to how the regulations will be applied to [the developer's] property.' " (quoting Williamson at 199-00). Leaving aside the question of how definitive a local zoning decision must be to satisfy Williamson `s demand for finality,[1] two points about the requirement are clear: it applies to decisions about how a takings plaintiff's own land may be used, and it responds to the high degree of discretion characteristically possessed by land-use boards in softening the strictures of the general regulations they administer. As the Court said in "local agencies charged with administering regulations governing property development are singularly flexible institutions; what they take with the one hand they may give back with the other." When such flexibility or discretion may be brought to bear on the permissible use of property as singular as a *739 parcel of land, a sound judgment about what use will be allowed simply cannot be made by asking whether a parcel's characteristics or a proposal's details facially conform to the terms of the general use regulations. The demand for finality is satisfied by Suitum's claim, however, there being no question here about how the "regulations at issue [apply] to the particular land in question." Williamson It is undisputed that the agency "has finally determined that petitioner's land lies entirely within an SEZ," Brief for Respondent 1, and that it may therefore permit "[n]o additional land coverage or other permanent land disturbance" on the parcel, TRPA Code 0.4. Because the agency has no discretion to exercise over Suitum's right to use her land, no occasion exists for applying Williamson `s requirement that a landowner take steps to obtain a final decision about the use that will be permitted on a particular parcel. The parties, of course, contest the relevance of the TDR's to the issue of whether a taking has occurred, but resolution of that legal issue will require no further agency action of the sort demanded by Williamson B The agency nonetheless argued below, and the lower courts agreed, see at 73-733, that there remains a "final decision" for the agency to make: action on a possible application by Suitum to transfer the TDR's to which she is indisputably entitled. This is not, however, the type of "final decision" required by our Williamson precedents. Those precedents addressed the virtual impossibility of determining what development will be permitted on a particular lot of land when its use is subject to the decision of a regulatory body invested with great discretion, which it has not yet even been asked to exercise. No such question is presented here. The parties agree on the particular TDR's to which Suitum is entitled, and no discretionary decision *740 must be made by any agency official for her to obtain them or to offer them for sale. The only decision left to the agency is approval of a particular transfer of TDR's to make certain that a given potential buyer may lawfully use them. But whether a particular sale of TDR's may be completed is quite different from whether TDR's are salable; so long as the particular buyer is not the only person who can lawfully buy, the rights would not be rendered unsalable even if the agency were to make a discretionary decision to kill a particular sale. And the class of buyers is not even arguably so limited here, where there is no question so far as the law is concerned that TDR's may be bought and used for the benefit of all sorts of land parcels and lots. C The agency's argument that Suitum's case is not ripe because no "`values attributable to [Suitum's TDR's] are known,' " Brief for Respondent 3 (quoting No. CV—N-91— 040—ECR (D. Nev., Mar. 30, 1994), App. to Pet. for Cert. C-4, is just a variation on the preceding position, and fares no better. First, as to Suitum's rights to receive TDR's that she may later sell, we have already noted that little or no uncertainty remains. Although the value of a Residential Development Right may well be greater if it is offered together with a Residential Allocation, and although Suitum must still enter the lottery for the latter, there is no discretionary decision to be made in determining whether she will get one; in fact, the probability of her getting one is "100 percent" according to the agency, see Tr. of Oral Arg. 40, since there are fewer applications than available allocations, see But even if that were not the case, as it probably will not always be, it would be unreasonable to require Suitum to enter the drawing in order to ripen her suit. The agency does not, and surely could not, maintain that if the odds of success in the allocation lottery were low, *741 Suitum's takings claim could be kept at bay from year to year until she actually won the drawing; such a rule would allow any local authority to stultify the Fifth Amendment's guarantee. Rather, in such circumstances, the value attributable to the allocation Suitum might or might not receive in the drawing would simply be discounted to reflect the mathematical likelihood of her obtaining one. Second, as to Suitum's right to transfer her TDR's, the only contingency apart from private market demand turns on the right of the agency to deny approval for a specific transfer on grounds that the buyer's use of the TDR's would violate the terms of the scheme or other local land-use regulation, and the right of a local regulatory body to deny transfer approval for the latter reason. See TRPA Code 0.3.C, 34., 34.3. But even if these potential bars based on a buyer's intended use of TDR's should turn out to involve the same degree of discretion assumed in the Williamson ripeness requirement, that discretion still would not render the value of the TDR's nearly as unknowable as the chances of particular development being permitted on a particular parcel in the absence of a zoning board decision that could quite lawfully be either yes or no. While a particular sale is subject to approval, salability is not, and the agency's own position assumes that there are many potential, lawful buyers for Suitum's TDR's, whose receipt of those rights would unquestionably be approved. The valuation of Suitum's TDR's is therefore simply an issue of fact about possible market prices, and one on which the District Court had considerable evidence before it, see at 731-73.[13] Of course, as the agency appears to be saying, see, e. g., Brief for Respondent -3, the very best evidence of the value of Suitum's TDR's might be their actual *74 selling price (assuming, of course, that the sale were made in good faith and at arm's length). But similar determinations of market value are routinely made in judicial proceedings without the benefit of a market transaction in the subject property. See, e. g., United States v. 819.98 Acres of Land, More or Less, Located in Wasatch and Summit Counties, ; United 991 F.d 336, ; see also 5 J. Sackman, Nichols' Law of Eminent Domain 3-01, p. 3-6 (rev. 3d ed. 1997) ("[I]t is well established that the value ofland taken or injured by the exercise of the power of eminent domain may be shown by opinion evidence"); see generally 4 1.0 (discussing establishment of market value of condemned land). While it is true that market value may be hard to calculate without a regular trade in TDR's, if Suitum is ready to proceed in spite of this difficulty, ripeness doctrine does not block her. In fact, the reason for the agency's objection is probably a concern that without much market experience in sales of TDR's, their market values will get low estimates. But this is simply one of the risks of regulatory pioneering, and the pioneer here is the agency, not Suitum. III Finally, the agency argues (for the first time, before this Court) that Suitum's claim is unripe under the "fitness for review" requirement of Abbott Abbott Laboratories arose on a petition under the Administrative Procedure Act (APA), 5 U.S. C. 701-704 (1964 ed., Supp. II), by a group of drug manufacturers seeking review of a labeling regulation promulgated by the Commissioner of Food and Drugs (FDA) but not yet the subject of any enforcement action against the manufacturers. The petitioners claimed that the FDA lacked statutory *743 authority to impose the new labeling requirement; the FDA countered that the claim was not ripe for judicial review for want of any proceedings to enforce the regulation. The Court dealt with ripeness under a two-pronged test: "Without undertaking to survey the intricacies of the ripeness doctrine it is fair to say that its basic rationale is to prevent the courts, through avoidance of premature adjudication, from entangling themselves in abstract disagreements over administrative policies, and also to protect the agencies from judicial interference until an administrative decision has been formalized and its effects felt in a concrete way by the challenging parties. The problem is best seen in a twofold aspect, requiring us to evaluate both the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration." -149 Under the "fitness for review" prong, we first noted that the FDA's adoption of the labeling regulation was "final agency action" within the meaning of 10 of the APA, 5 U.S. C. 704, and then rejected the Government's argument that review must await -15. We reasoned that "the impact of the regulations upon the petitioners is sufficiently direct and immediate as to render the issue appropriate for judicial review at this stage" because promulgation of the regulations "puts petitioners in a dilemma": "Either they must comply with the [labeling] requirement and incur the costs of changing over their promotional material and labeling or they must follow their present course and risk prosecution." at 15 Similarly, the immediate impact of the regulation on the manufacturers satisfied the "hardship" prong: "Where the legal issue presented is fit for judicial resolution, and where a regulation requires an immediate and significant change in the plaintiffs' conduct of their affairs with serious *744 penalties attached to noncompliance," hardship has been demonstrated and "access to the courts must be permitted." Abbott Laboratories is not on point. The drug companies in that case were challenging the validity of a regulation as beyond the scope of the FDA's authority. Whatever the arguable merit of the FDA's position on ripeness may have been, it rested on the fact that the manufacturers could have precipitated their challenge (if they had wanted) by violating the regulation and defending any subsequent prosecution by placing the regulation's validity in question. Suitum is in a different position from the manufacturers. She does not challenge the validity of the agency's regulations; her litigating position assumes that the agency may validly bar her land development just as all agree it has actually done, and her only challenge to the TDR's raises a question about their value, not about the lawfulness of issuing them. Suitum seeks not to be free of the regulations but to be paid for their consequences, and even if for some odd reason she had decided to bring things to a head by building without a permit, a 1983 action for money would not be a defense to an equity proceeding to enjoin development. Indeed, to the extent that Abbott Laboratories is in any sense instructive in the disposition of the case before us, it cuts directly against the agency: Suitum is just as definitively barred from taking any affirmative step to develop her land as the drug companies were bound to take affirmative steps to change their labels. The only discretionary step left to an agency in either situation is enforcement, not determining applicability. * * * Because we find that Suitum has received a "final decision" consistent with Williamson `s ripeness requirement, we vacate the judgment of the Court of Appeals and remand for further proceedings consistent with this opinion. It is so ordered. *745 Justice Scalia, with whom Justice O'Connor and Justice Thomas join, concurring in part and concurring in the judgment.

Justice Scalia

concurring

Suitum v. Tahoe Regional Planning Agency

1997-05-27

https://www.courtlistener.com/opinion/118116/suitum-v-tahoe-regional-planning-agency/

https://www.courtlistener.com/api/rest/v3/clusters/118116/

1996-060

I concur in the judgment of the Court, and join its opinion except for Parts II—B and II—C. Those sections consider whether the Tahoe Regional Planning Agency (TRPA) must have reached a final decision regarding Suitum's ability to sell her Transferable Development Rights (TDRs), and whether the value of Suitum's TDRs must be known. That discussion presumes that the answers to those questions may be relevant to the issue presented at this preliminary stage of the present case: whether Suitum's takings claim is ripe for judicial review under the "final decision" requirement. In my view they are not relevant to that issue, and the Court's discussion is beside the point. To describe the nature of the "final decision" inquiry, the Court's opinion quotes only the vague language of Williamson County Regional Planning Comm'n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), that there must be a "final decision regarding the application of the [challenged] regulations to the property at issue," id., at 186, quoted ante, at 734, and of MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340 (1986), that "[a] court cannot determine whether a regulation has gone `too far' unless it knows how far the regulation goes," id., at 348, quoted ante, at 734. Unmentioned in the opinion are other, more specific, statements in those very cases (and elsewhere) which display quite clearly that the quoted generalizations (and the "final decision" inquiry) have nothing to do with TDRs. Later in Williamson County, for example, we explained that the purpose of the "final decision" requirement was to ensure that the Court can ascertain "how [the takings plaintiff] will be allowed to develop its property," Williamson County, supra, at 190. And on the very same page from which the Court extracted the vague statement, MacDonald says quite precisely that the essential function of the "final decision" requirement *746 is to ensure that there has been a "determination of the type and intensity of development legally permitted on the subject property," MacDonald, supra, at 348; and says later that "[o]ur cases uniformly reflect an insistence on knowing the nature and extent of permitted development before adjudicating the constitutionality of the regulations that purport to limit it," 477 U.S., at 351. The Court fails even to mention, in its otherwise encyclopedic description of the development of the "final decision" requirement, the most recent of our opinions addressing the subject, Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992), in which we relied exclusively on these more precise formulations and did not mention the vague language quoted by the Court today, see id., at 1011. The focus of the "final decision" inquiry is on ascertaining the extent of the governmental restriction on land use, not what the government has given the landowner in exchange for that restriction. When our cases say, as the Court explains ante, at 734, that without a "final decision" it is impossible to know whether the regulation "goes too far," Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 415 (1922), they mean "goes too far in restricting the profitable use of the land," not "goes not far enough in providing compensation for restricting the profitable use of the land." The latter pertains not to whether there has been a taking, but to the subsequent question of whether, if so, there has been just compensation. In all of the cases discussed in Part II—A of the Court's opinion bearing on the question whether a "final decision" requisite to a takings claim had been made, the point at issue was whether the government had finally determined the permissible use of the land. In Agins v. City of Tiburon, 447 U.S. 255 (1980), discussed ante, at 735-736, the government had not yet determined how many houses the challenged zoning ordinance would permit on the plaintiff's property. In Hodel v. Virginia Surface Mining & Reclamation Assn., *747 Inc., 452 U.S. 264 (1981), discussed ante, at 736-737, the government had not yet determined whether a variance from the land-use restrictions of the Surface Mining Control and Reclamation Act of 1977 would be allowed. In Williamson County, supra, discussed ante, at 737, the government had not yet determined whether it would approve the developer's plan to build a residential complex. And in MacDonald, supra, discussed ante, at 737-738, the government had again not yet determined whether the developer's subdivision plan would be approved. TDRs, of course, have nothing to do with the use or development of the land to which they are (by regulatory decree) "attached." The right to use and develop one's own land is quite distinct from the right to confer upon someone else an increased power to use and develop his land. The latter is valuable, to be sure, but it is a new right conferred upon the landowner in exchange for the taking, rather than a reduction of the taking. In essence, the TDR permits the landowner whose right to use and develop his property has been restricted or extinguished to extract money from others. Just as a cash payment from the government would not relate to whether the regulation "goes too far" (i. e., restricts use of the land so severely as to constitute a taking), but rather to whether there has been adequate compensation for the taking; and just as a chit or coupon from the government, redeemable by and hence marketable to third parties, would relate not to the question of taking but to the question of compensation; so also the marketable TDR, a peculiar type of chit which enables a third party not to get cash from the government but to use his land in ways the government would otherwise not permit, relates not to taking but to compensation. It has no bearing upon whether there has been a "final decision" concerning the extent to which the plaintiff's land use has been constrained. Putting TDRs on the taking rather than the justcompensation side of the equation (as the Ninth Circuit did *748 below) is a clever, albeit transparent, device that seeks to take advantage of a peculiarity of our Takings-Clause jurisprudence: Whereas once there is a taking, the Constitution requires just (i. e., full) compensation, see, e. g., United States v. 564.54 Acres of Monroe and Pike County Land, 441 U.S. 506, 510 (1979) (owner must be put "`in as good a position pecuniarily as if his property had not been taken' "); Monongahela Nav. Co. v. United States, 148 U.S. 312, 326 (1893) ("[T]he compensation must be a full and perfect equivalent for the property taken"), a regulatory taking generally does not occur so long as the land retains substantial (albeit not its full) value, see, e. g., Penn Central Transp. Co. v. New York City, 438 U.S. 104 (1978). If money that the governmentregulator gives to the landowner can be counted on the question of whether there is a taking (causing the courts to say that the land retains substantial value, and has thus not been taken), rather than on the question of whether the compensation for the taking is adequate, the government can get away with paying much less. That is all that is going on here. It would be too obvious, of course, for the government simply to say "although your land is regulated, our land-use scheme entitles you to a government payment of $1,000." That is patently compensation and not retention of land value. It would be a little better to say "under our land-use scheme, TDRs are attached to every parcel, and if the parcel is regulated its TDR can be cashed in with the government for $1,000." But that still looks too much like compensation. The cleverness of the scheme before us here is that it causes the payment to come, not from the government but from third parties —whom the government reimburses for their outlay by granting them (as the TDRs promise) a variance from otherwise applicable land-use restrictions. Respondent maintains that Penn Central supports the conclusion that TDRs are relevant to the question whether there has been a taking. In Penn Central we remarked that because the rights to develop the airspace above Grand Central *749 Terminal had been made transferable to other parcels in the vicinity (some of which the owners of the terminal themselves owned), it was "not literally accurate to say that [the owners] have been denied all use of [their] pre-existing air rights"; and that even if the TDRs were inadequate to constitute "just compensation" if a taking had occurred, they could nonetheless "be taken into account in considering the impact of regulation." Id., at 137 (emphasis in original). This analysis can be distinguished from the case before us on the ground that it was applied to landowners who owned at least eight nearby parcels, some immediately adjacent to the terminal, that could be benefited by the TDRs. See id., at 115. The relevant land, it could be said, was the aggregation of the owners' parcels subject to the regulation (or at least the contiguous parcels); and the use of that land, as a whole, had not been diminished. It is for that reason that the TDRs affected "the impact of the regulation." This analysis is supported by the concluding clause of the opinion, which says that the restrictions "not only permit reasonable beneficial use of the landmark site but also afford appellants opportunities further to enhance not only the Terminal site proper but also other properties." Id., at 138. If Penn Central `s one-paragraph expedition into the realm of TDRs were not distinguishable in this fashion, it would deserve to be overruled. Considering in the takings calculus the market value of TDRs is contrary to the import of a whole series of cases, before and since, which make clear that the relevant issue is the extent to which use or development of the land has been restricted. Indeed, it is contrary to the whole principle that land-use regulation, if severe enough, can constitute a taking which must be fully compensated. I do not mean to suggest that there is anything undesirable or devious about TDRs themselves. To the contrary, TDRs can serve a commendable purpose in mitigating the economic loss suffered by an individual whose property use is restricted, and property value diminished, but not so substantially *750 as to produce a compensable taking. They may also form a proper part, or indeed the entirety, of the full compensation accorded a landowner when his property is taken. Accord, Penn Central, supra, at 152 (Rehnquist, J., dissenting) (noting that Penn Central had been "offered substantial amounts" for its TDRs and suggesting the appropriateness of a remand for a determination of whether the TDRs are valuable enough to constitute full compensation). I suggest only that the relevance of TDRs is limited to the compensation side of the takings analysis, and that taking them into account in determining whether a taking has occurred will render much of our regulatory takings jurisprudence a nullity, see Comment, Environmental Interest Groups and Land Regulation: Avoiding the Clutches of Lucas v. South Carolina Coastal Council, 48 U. Miami L. Rev. 1179, 1212 (1994). In sum, I would resolve the question of whether there has been a "final decision" in this case by looking only to the fixing of petitioner's rights to use and develop her land. There has never been any dispute over whether that has occurred. Before bringing the present suit, petitioner applied for permission to build a house on her lot, and was denied permission to do so on the basis of TRPA's determination that her property is located within a "Stream Environment Zone"—a designation that carries the consequence that "[n]o additional land coverage or other permanent land disturbance shall be permitted," TRPA Code § 20.4. Respondent in fact concedes that "[w]e know the full extent of the regulation's impact in restricting petitioner's development of her own land," Brief for Respondent 21. That is all we need to know to conclude that the "final decision" requirement has been met.

I concur in the judgment of the Court, and join its opinion except for Parts II—B and II—C. Those sections consider whether the Tahoe Regional Planning Agency (TRPA) must have reached a final decision regarding Suitum's ability to sell her Transferable Development Rights (TDRs), and whether the value of Suitum's TDRs must be known. That discussion presumes that the answers to those questions may be relevant to the issue presented at this preliminary stage of the present case: whether Suitum's takings claim is ripe for judicial review under the "final decision" requirement. In my view they are not relevant to that issue, and the Court's discussion is beside the point. To describe the nature of the "final decision" inquiry, the Court's opinion quotes only the vague language of Williamson Regional Planning that there must be a "final decision regarding the application of the [challenged] regulations to the property at issue," quoted ante, at 734, and of Sommer & that "[a] court cannot determine whether a regulation has gone `too far' unless it knows how far the regulation goes," quoted ante, at 734. Unmentioned in the opinion are other, more specific, statements in those very cases (and elsewhere) which display quite clearly that the quoted generalizations (and the "final decision" inquiry) have nothing to do with TDRs. Later in Williamson for example, we explained that the purpose of the "final decision" requirement was to ensure that the Court can ascertain "how [the takings plaintiff] will be allowed to develop its property," Williamson And on the very same page from which the Court extracted the vague statement, says quite precisely that the essential function of the "final decision" requirement *746 is to ensure that there has been a "determination of the type and intensity of development legally permitted on the subject property," ; and says later that "[o]ur cases uniformly reflect an insistence on knowing the nature and extent of permitted development before adjudicating the constitutionality of the regulations that purport to limit it," The Court fails even to mention, in its otherwise encyclopedic description of the development of the "final decision" requirement, the most recent of our opinions addressing the subject, in which we relied exclusively on these more precise formulations and did not mention the vague language quoted by the Court today, see The focus of the "final decision" inquiry is on ascertaining the extent of the governmental restriction on land use, not what the government has given the landowner in exchange for that restriction. When our cases say, as the Court explains ante, at 734, that without a "final decision" it is impossible to know whether the regulation "goes too far," Pennsylvania Coal they mean "goes too far in restricting the profitable use of the land," not "goes not far enough in providing compensation for restricting the profitable use of the land." The latter pertains not to whether there has been a taking, but to the subsequent question of whether, if so, there has been just compensation. In all of the cases discussed in Part II—A of the Court's opinion bearing on the question whether a "final decision" requisite to a takings claim had been made, the point at issue was whether the government had finally determined the permissible use of the land. In discussed ante, at 735-736, the government had not yet determined how many houses the challenged zoning ordinance would permit on the plaintiff's property. In discussed ante, at 736-737, the government had not yet determined whether a variance from the land-use restrictions of the Surface Mining Control and Reclamation Act of 1977 would be allowed. In Williamson discussed ante, at 737, the government had not yet determined whether it would approve the developer's plan to build a residential complex. And in discussed ante, at 737-738, the government had again not yet determined whether the developer's subdivision plan would be approved. TDRs, of course, have nothing to do with the use or development of the land to which they are (by regulatory decree) "attached." The right to use and develop one's own land is quite distinct from the right to confer upon someone else an increased power to use and develop his land. The latter is valuable, to be sure, but it is a new right conferred upon the landowner in exchange for the taking, rather than a reduction of the taking. In essence, the TDR permits the landowner whose right to use and develop his property has been restricted or extinguished to extract money from others. Just as a cash payment from the government would not relate to whether the regulation "goes too far" (i. e., restricts use of the land so severely as to constitute a taking), but rather to whether there has been adequate compensation for the taking; and just as a chit or coupon from the government, redeemable by and hence marketable to third parties, would relate not to the question of taking but to the question of compensation; so also the marketable TDR, a peculiar type of chit which enables a third party not to get cash from the government but to use his land in ways the government would otherwise not permit, relates not to taking but to compensation. It has no bearing upon whether there has been a "final decision" concerning the extent to which the plaintiff's land use has been constrained. Putting TDRs on the taking rather than the justcompensation side of the equation (as the Ninth Circuit did *748 below) is a clever, albeit transparent, device that seeks to take advantage of a peculiarity of our Takings-Clause jurisprudence: Whereas once there is a taking, the Constitution requires just (i. e., full) compensation, see, e. g., United States v. 564.54 Acres of Monroe and Pike Land, ; Monongahela Nav. a regulatory taking generally does not occur so long as the land retains substantial (albeit not its full) value, see, e. g., Penn Transp. If money that the governmentregulator gives to the landowner can be counted on the question of whether there is a taking (causing the courts to say that the land retains substantial value, and has thus not been taken), rather than on the question of whether the compensation for the taking is adequate, the government can get away with paying much less. That is all that is going on here. It would be too obvious, of course, for the government simply to say "although your land is regulated, our land-use scheme entitles you to a government payment of $1,000." That is patently compensation and not retention of land value. It would be a little better to say "under our land-use scheme, TDRs are attached to every parcel, and if the parcel is regulated its TDR can be cashed in with the government for $1,000." But that still looks too much like compensation. The cleverness of the scheme before us here is that it causes the payment to come, not from the government but from third parties —whom the government reimburses for their outlay by granting them (as the TDRs promise) a variance from otherwise applicable land-use restrictions. Respondent maintains that Penn supports the conclusion that TDRs are relevant to the question whether there has been a taking. In Penn we remarked that because the rights to develop the airspace above Grand *749 Terminal had been made transferable to other parcels in the vicinity (some of which the owners of the terminal themselves owned), it was "not literally accurate to say that [the owners] have been denied all use of [their] pre-existing air rights"; and that even if the TDRs were inadequate to constitute "just compensation" if a taking had occurred, they could nonetheless "be taken into account in considering the impact of regulation." This analysis can be distinguished from the case before us on the ground that it was applied to landowners who owned at least eight nearby parcels, some immediately adjacent to the terminal, that could be benefited by the TDRs. See The relevant land, it could be said, was the aggregation of the owners' parcels subject to the regulation (or at least the contiguous parcels); and the use of that land, as a whole, had not been diminished. It is for that reason that the TDRs affected "the impact of the regulation." This analysis is supported by the concluding clause of the opinion, which says that the restrictions "not only permit reasonable beneficial use of the landmark site but also afford appellants opportunities further to enhance not only the Terminal site proper but also other properties." If Penn `s one-paragraph expedition into the realm of TDRs were not distinguishable in this fashion, it would deserve to be overruled. Considering in the takings calculus the market value of TDRs is contrary to the import of a whole series of cases, before and since, which make clear that the relevant issue is the extent to which use or development of the land has been restricted. Indeed, it is contrary to the whole principle that land-use regulation, if severe enough, can constitute a taking which must be fully compensated. I do not mean to suggest that there is anything undesirable or devious about TDRs themselves. To the contrary, TDRs can serve a commendable purpose in mitigating the economic loss suffered by an individual whose property use is restricted, and property value diminished, but not so substantially *750 as to produce a compensable taking. They may also form a proper part, or indeed the entirety, of the full compensation accorded a landowner when his property is taken. Accord, Penn (noting that Penn had been "offered substantial amounts" for its TDRs and suggesting the appropriateness of a remand for a determination of whether the TDRs are valuable enough to constitute full compensation). I suggest only that the relevance of TDRs is limited to the compensation side of the takings analysis, and that taking them into account in determining whether a taking has occurred will render much of our regulatory takings jurisprudence a nullity, see Comment, Environmental Interest Groups and Land Regulation: Avoiding the Clutches of In sum, I would resolve the question of whether there has been a "final decision" in this case by looking only to the fixing of petitioner's rights to use and develop her land. There has never been any dispute over whether that has occurred. Before bringing the present suit, petitioner applied for permission to build a house on her lot, and was denied permission to do so on the basis of TRPA's determination that her property is located within a "Stream Environment Zone"—a designation that carries the consequence that "[n]o additional land coverage or other permanent land disturbance shall be permitted," TRPA Code 20.4. Respondent in fact concedes that "[w]e know the full extent of the regulation's impact in restricting petitioner's development of her own land," Brief for Respondent 21. That is all we need to know to conclude that the "final decision" requirement has been met.

per_curiam

per_curiam

Wright v. Van Patten

2008-01-07

https://www.courtlistener.com/opinion/145839/wright-v-van-patten/

https://www.courtlistener.com/api/rest/v3/clusters/145839/

2007-009

The Court of Appeals for the Seventh Circuit held that respondent Joseph Van Patten was entitled to relief under 28 U.S.C. § 2254, reasoning that his lawyer's assistance was presumptively ineffective owing to his participation in a plea hearing by speaker phone. Van Patten v. Deppisch, 434 F.3d 1038 (2006). We granted certiorari, vacated the judgment, and remanded the case for further consideration in light of Carey v. Musladin, 549 U.S. ___, 127 S. Ct. 649, 166 L. Ed. 2d 482 (2006). On remand, the Seventh Circuit adhered to its original decision, concluding that "[n]othing in Musladin requires that our 2006 opinion be changed." Van Patten v. Endicott, 489 F.3d 827, 828 (2007). We grant the petition for certiorari now before us and this time reverse the judgment of the Seventh Circuit. I Van Patten was charged with first-degree intentional homicide and pleaded no contest to a reduced charge of first-degree reckless homicide. His counsel was not physically present at the plea hearing but was linked to the courtroom by speaker phone. After the state trial court imposed the maximum term of 25 years in prison, Van Patten retained different counsel and moved in the Wisconsin Court of Appeals to withdraw his no-contest plea. The thrust of the motion was that Van Patten's Sixth Amendment right to counsel had been violated by his trial counsel's physical absence from the plea hearing. The Wisconsin Court of Appeals noted that, under state law, a postconviction motion to withdraw a no-contest plea will be granted only if a defendant establishes "manifest injustice" by clear and convincing evidence. See State v. Van Pattten, No. 96-3036-CR (Wis.App., May 28, 1997), App. to Pet. for Cert. A47-A48. While the court acknowledged that "the violation of the defendant's Sixth Amendment right to counsel may constitute a manifest injustice," id., at A48, it found that the absence of Van Patten's lawyer from the plea hearing did not violate his right to counsel: "The plea hearing transcript neither indicates any deficiency in the plea colloquy, nor suggests that Van Patten's attorney's participation by telephone interfered in any way with [Van Patten's] ability to communicate with his attorney about his plea. Van Patten confirmed that he had thoroughly discussed his case and plea decision with his attorney and was satisfied with the legal representation he had received. The court gave Van Patten the opportunity to speak privately with his attorney over the phone if he had questions about the plea, but Van Patten declined. Further, when Van Patten exercised his right to allocution at sentencing, in the personal presence of his attorney, he raised no objection to his plea." Id., at A49-A50. Applying Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984), the court concluded that "[t]he record does not support, nor does Van Patten's appellate brief include, any argument that counsel's performance was deficient or prejudicial," No. 96-3036-CR, App. to Pet. for Cert. A51, and denied Van Patten's motion. *745 After the Wisconsin Supreme Court declined further review, Van Patten petitioned for a writ of habeas corpus under 28 U.S.C. § 2254 in Federal District Court. The District Court denied relief, but the Court of Appeals for the Seventh Circuit reversed. It held that Van Patten's Sixth Amendment claim should have been resolved, not under Strickland's two-pronged test (which requires a showing of deficient performance and prejudice to the defendant), but under the standard discussed in United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984) (under which prejudice may be presumed). Although the Seventh Circuit recognized that this case "presents [a] novel ... question," Deppisch, 434 F.3d, at 1040, and conceded that "[u]nder Strickland, it seems clear [that] Van Patten would have no viable claim," id., at 1042, the court concluded that "it is clear to us that Van Patten's case must be resolved under Cronic," id., at 1043. The resolution was in Van Patten's favor. While the prison warden's petition for certiorari was pending, this Court decided Musladin, supra. Musladin had invoked this Court's cases recognizing "that certain courtroom practices are so inherently prejudicial that they deprive the defendant of a fair trial," id., at ___, 127 S.Ct., at 651. The issue was the significance of these precedents in a case under § 2254, which bars relief on any claim "adjudicated on the merits" in state court, unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). The prejudicial conduct involved in Musladin was courtroom conduct of private actors. We held that the "inheren[t] prejudic[e]" test, which we thus far have applied only in cases involving government-sponsored conduct, see, e.g., Estelle v. Williams, 425 U.S. 501, 96 S. Ct. 1691, 48 L. Ed. 2d 126 (1976); Holbrook v. Flynn, 475 U.S. 560, 106 S. Ct. 1340, 89 L. Ed. 2d 525 (1986), did not clearly extend to the conduct of independently acting courtroom spectators. See Musladin, supra, at ___, 127 S.Ct., at 654 ("[A]lthough the Court articulated the test for inherent prejudice that applies to state conduct in Williams and Flynn, we have never applied that test to spectators' conduct. Indeed, part of the legal test of Williams and Flynn—asking whether the practices furthered an essential state interest—suggests that those cases apply only to state-sponsored practices"). For that reason, we reversed the Court of Appeals' grant of habeas relief. Musladin's explanation of the "clearly established Federal law" requirement prompted us to remand Van Patten's case to the Seventh Circuit for further consideration. A majority of the panel reaffirmed its original judgment, however, on the ground that "[u]nlike Musladin, this case does not concern an open constitutional question," because "[t]he Supreme Court has long recognized a defendant's right to relief if his defense counsel was actually or constructively absent at a critical stage of the proceedings." 489 F.3d, at 828. Judge Coffey disagreed, observing that "the United States Supreme Court has never held that an attorney is presumed to be ineffective if he participates in a plea hearing by speaker phone rather than by physical appearance." Ibid. (emphasis deleted). He found that "[t]he Majority Opinion does not comport with Musladin," ibid., and dissented from "the court's erroneous decision to allow" its original opinion "to stand as written," id., at 829. We reach the same conclusion. II Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 *746 (1984) ordinarily applies to claims of ineffective assistance of counsel at the plea hearing stage. See Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 88 L. Ed. 2d 203 (1985) ("[T]he two-part Strickland v. Washington test applies to challenges to guilty pleas based on ineffective assistance of counsel"). And it was in a different context that Cronic "recognized a narrow exception to Strickland's holding that a defendant who asserts ineffective assistance of counsel must demonstrate not only that his attorney's performance was deficient, but also that the deficiency prejudiced the defense." Florida v. Nixon, 543 U.S. 175, 190, 125 S. Ct. 551, 160 L. Ed. 2d 565 (2004) (discussing Cronic). Cronic held that a Sixth Amendment violation may be found "without inquiring into counsel's actual performance or requiring the defendant to show the effect it had on the trial," Bell v. Cone, 535 U.S. 685, 695, 122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002), when "circumstances [exist] that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified," Cronic, supra, at 658, 104 S. Ct. 2039. Cronic, not Strickland, applies "when ... the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial," 466 U.S., at 659-660, 104 S. Ct. 2039,[*] and one circumstance warranting the presumption is the "complete denial of counsel," that is, when "counsel [is] either totally absent, or prevented from assisting the accused during a critical stage of the proceeding," id., at 659, and n. 25, 104 S. Ct. 2039. No decision of this Court, however, squarely addresses the issue in this case, see Deppisch, supra, at 1040 (noting that this case "presents [a] novel ... question"), or clearly establishes that Cronic should replace Strickland in this novel factual context. Our precedents do not clearly hold that counsel's participation by speaker phone should be treated as a "complete denial of counsel," on par with total absence. Even if we agree with Van Patten that a lawyer physically present will tend to perform better than one on the phone, it does not necessarily follow that mere telephone contact amounted to total absence or "prevented [counsel] from assisting the accused," so as to entail application of Cronic. The question is not whether counsel in those circumstances will perform less well than he otherwise would, but whether the circumstances are likely to result in such poor performance that an inquiry into its effects would not be worth the time. Cf. United States v. Gonzalez-Lopez, 548 U.S. ___, ___, 126 S. Ct. 2557, 2563, 165 L. Ed. 2d 409 (2006) (Sixth Amendment ensures "effective (not mistake-free) representation" (emphasis in original)). Our cases provide no categorical answer to this question, and for that matter the several proceedings in this case hardly point toward one. The Wisconsin Court of Appeals held counsel's performance by speaker phone to be constitutionally effective; neither the Magistrate Judge, the District Court, nor the Seventh Circuit disputed this conclusion; and the Seventh Circuit itself stated that "[u]nder *747 Strickland, it seems clear Van Patten would have no viable claim." Deppisch, 434 F.3d, at 1042. Because our cases give no clear answer to the question presented, let alone one in Van Patten's favor, "it cannot be said that the state court `unreasonabl[y] appli[ed] clearly established Federal law.'" Musladin, 549 U.S., at ___, 127 S. Ct. 649, 654 (quoting 28 U.S.C. § 2254(d)(1)). Under the explicit terms of § 2254(d)(1), therefore, relief is unauthorized. * * * Petitioner tells us that "[i]n urging review, [the State] does not condone, recommend, or encourage the practice of defense counsel assisting clients by telephone rather than in person at court proceedings, even in nonadversarial hearings such as the plea hearing in this case," Pet. for Cert. 5, and he acknowledges that "[p]erhaps, under similar facts in a direct federal appeal, the Seventh Circuit could have properly reached the same result it reached here," ibid. Our own consideration of the merits of telephone practice, however, is for another day, and this case turns on the recognition that no clearly established law contrary to the state court's conclusion justifies collateral relief. The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE STEVENS, concurring in the judgment.

The Court of Appeals for the Seventh Circuit held that respondent Joseph Van Patten was entitled to relief under reasoning that his lawyer's assistance was presumptively ineffective owing to his participation in a plea hearing by speaker phone. Van We granted certiorari, vacated the judgment, and remanded the case for further consideration in light of On remand, the Seventh Circuit adhered to its original decision, concluding that "[n]othing in requires that our opinion be changed." Van We grant the petition for certiorari now before us and this time reverse the judgment of the Seventh Circuit. I Van Patten was charged with first-degree intentional homicide and pleaded no contest to a reduced charge of first-degree reckless homicide. His counsel was not physically present at the plea hearing but was linked to the courtroom by speaker phone. After the state trial court imposed the maximum term of 25 years in prison, Van Patten retained different counsel and moved in the Wisconsin Court of Appeals to withdraw his no-contest plea. The thrust of the motion was that Van Patten's Sixth Amendment right to counsel had been violated by his trial counsel's physical absence from the plea hearing. The Wisconsin Court of Appeals noted that, under state law, a postconviction motion to withdraw a no-contest plea will be granted only if a defendant establishes "manifest injustice" by clear and convincing evidence. See State v. Van Pattten, No. 96-3036-CR (Wis.App., May 28, 1997), App. to Pet. for Cert. A47-A48. While the court acknowledged that "the violation of the defendant's Sixth Amendment right to counsel may constitute a manifest injustice," at A48, it found that the absence of Van Patten's lawyer from the plea hearing did not violate his right to counsel: "The plea hearing transcript neither indicates any deficiency in the plea colloquy, nor suggests that Van Patten's attorney's participation by telephone interfered in any way with [Van Patten's] ability to communicate with his attorney about his plea. Van Patten confirmed that he had thoroughly discussed his case and plea decision with his attorney and was satisfied with the legal representation he had received. The court gave Van Patten the opportunity to speak privately with his attorney over the phone if he had questions about the plea, but Van Patten declined. Further, when Van Patten exercised his right to allocution at sentencing, in the personal presence of his attorney, he raised no objection to his plea." at A49-A50. Applying the court concluded that "[t]he record does not support, nor does Van Patten's appellate brief include, any argument that counsel's performance was deficient or prejudicial," No. 96-3036-CR, App. to Pet. for Cert. A51, and denied Van Patten's motion. *745 After the Wisconsin Supreme Court declined further review, Van Patten petitioned for a writ of habeas corpus under in Federal District Court. The District Court denied relief, but the Court of Appeals for the Seventh Circuit reversed. It held that Van Patten's Sixth Amendment claim should have been resolved, not under Strickland's two-pronged test (which requires a showing of deficient performance and prejudice to the defendant), but under the standard discussed in United Although the Seventh Circuit recognized that this case "presents [a] novel question," and conceded that "[u]nder Strickland, it seems clear [that] Van Patten would have no viable claim," the court concluded that "it is clear to us that Van Patten's case must be resolved under" The resolution was in Van Patten's favor. While the prison warden's petition for certiorari was pending, this Court decided had invoked this Court's cases recognizing "that certain courtroom practices are so inherently prejudicial that they deprive the defendant of a fair trial," at The issue was the significance of these precedents in a case under 2254, which bars relief on any claim "adjudicated on the merits" in state court, unless the state court's decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." (d)(1). The prejudicial conduct involved in was courtroom conduct of private actors. We held that the "inheren[t] prejudic[e]" test, which we thus far have applied only in cases involving government-sponsored conduct, see, e.g., ; did not clearly extend to the conduct of independently acting courtroom spectators. See at ("[A]lthough the Court articulated the test for inherent prejudice that applies to state conduct in Williams and Flynn, we have never applied that test to spectators' conduct. Indeed, part of the legal test of Williams and Flynn—asking whether the practices furthered an essential state interest—suggests that those cases apply only to state-sponsored practices"). For that reason, we reversed the Court of Appeals' grant of habeas relief. 's explanation of the "clearly established Federal law" requirement prompted us to remand Van Patten's case to the Seventh Circuit for further consideration. A majority of the panel reaffirmed its original judgment, however, on the ground that "[u]nlike this case does not concern an open constitutional question," because "[t]he Supreme Court has long recognized a defendant's right to relief if his defense counsel was actually or constructively absent at a critical stage of the proceedings." 489 F.3d, at Judge Coffey disagreed, observing that "the United States Supreme Court has never held that an attorney is presumed to be ineffective if he participates in a plea hearing by speaker phone rather than by physical appearance." He found that "[t]he Majority Opinion does not comport with" ib and dissented from "the court's erroneous decision to allow" its original opinion "to stand as written," We reach the same conclusion. II ordinarily applies to claims of ineffective assistance of counsel at the plea hearing stage. See ("[T]he two-part test applies to challenges to guilty pleas based on ineffective assistance of counsel"). And it was in a different context that "recognized a narrow exception to Strickland's holding that a defendant who asserts ineffective assistance of counsel must demonstrate not only that his attorney's performance was deficient, but also that the deficiency prejudiced the defense." held that a Sixth Amendment violation may be found "without inquiring into counsel's actual performance or requiring the defendant to show the effect it had on the trial," when "circumstances [exist] that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified," at 6, not Strickland, applies "when the likelihood that any lawyer, even a fully competent one, could provide effective assistance is so small that a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial," -660,[*] and one circumstance warranting the presumption is the "complete denial of counsel," that is, when "counsel [is] either totally absent, or prevented from assisting the accused during a critical stage of the proceeding," and n. 25, No decision of this Court, however, squarely addresses the issue in this case, see or clearly establishes that should replace Strickland in this novel factual context. Our precedents do not clearly hold that counsel's participation by speaker phone should be treated as a "complete denial of counsel," on par with total absence. Even if we agree with Van Patten that a lawyer physically present will tend to perform better than one on the phone, it does not necessarily follow that mere telephone contact amounted to total absence or "prevented [counsel] from assisting the accused," so as to entail application of The question is not whether counsel in those circumstances will perform less well than he otherwise would, but whether the circumstances are likely to result in such poor performance that an inquiry into its effects would not be worth the time. Cf. United Our cases provide no categorical answer to this question, and for that matter the several proceedings in this case hardly point toward one. The Wisconsin Court of Appeals held counsel's performance by speaker phone to be constitutionally effective; neither the Magistrate Judge, the District Court, nor the Seventh Circuit disputed this conclusion; and the Seventh Circuit itself stated that "[u]nder *747 Strickland, it seems clear Van Patten would have no viable claim." 434 F.3d, Because our cases give no clear answer to the question presented, let alone one in Van Patten's favor, "it cannot be said that the state court `unreasonabl[y] appli[ed] clearly established Federal law.'" 549 U.S., at (quoting (d)(1)). Under the explicit terms of 2254(d)(1), therefore, relief is unauthorized. * * * Petitioner tells us that "[i]n urging review, [the State] does not condone, recommend, or encourage the practice of defense counsel assisting clients by telephone rather than in person at court proceedings, even in nonadversarial hearings such as the plea hearing in this case," Pet. for Cert. 5, and he acknowledges that "[p]erhaps, under similar facts in a direct federal appeal, the Seventh Circuit could have properly reached the same result it reached here," Our own consideration of the merits of telephone practice, however, is for another day, and this case turns on the recognition that no clearly established law contrary to the state court's conclusion justifies collateral relief. The judgment is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. JUSTICE STEVENS, concurring in the judgment.

Justice Stevens

concurring

Wright v. Van Patten

2008-01-07

https://www.courtlistener.com/opinion/145839/wright-v-van-patten/

https://www.courtlistener.com/api/rest/v3/clusters/145839/

2007-009

An unfortunate drafting error in the Court's opinion in United States v. Cronic, 466 U.S. 648, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984), makes it necessary to join the Court's judgment in this case. In Cronic, this Court explained that some violations of the right to counsel arise in "circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." Id., at 658, 104 S. Ct. 2039. One such circumstance exists when the accused is "denied the presence of counsel at a critical stage of the prosecution." Id., at 662, 104 S. Ct. 2039. We noted that the "presence" of lawyers "is essential because they are the means through which the other rights of the person on trial are secured." Id., at 653, 104 S. Ct. 2039. Regrettably, Cronic did not "clearly establish" the full scope of the defendant's right to the presence of an attorney. See 28 U.S.C. § 2254(d)(1). The Court of Appeals apparently read "the presence of counsel" in Cronic to mean "the presence of counsel in open court." Initially, all three judges on the panel assumed that the constitutional right at stake was the right to have counsel by one's side at all critical stages of the proceeding.[*] See also Van Patten v. Deppisch, No. 04-1276, 2006 U.S.App. LEXIS 5147 (CA7, Feb. 27, 2006) (noting that no *748 member of the Seventh Circuit requested a vote on the warden's petition for rehearing en banc). In my view, this interpretation is correct. The fact that in 1984, when Cronic was decided, neither the parties nor the Court contemplated representation by attorneys who were not present in the flesh explains the author's failure to add the words "in open court" after the word "present." As the Court explains today, however, the question is not the reasonableness of the federal court's interpretation of Cronic, but rather whether the Wisconsin court's narrower reading of that opinion was "objectively unreasonable." Williams v. Taylor, 529 U.S. 362, 409, 120 S. Ct. 1495, 146 L. Ed. 2d 389 (2000). In light of Cronic's references to the "complete denial of counsel" and "totally absent" counsel, 466 U.S., at 659, and n. 25, 104 S. Ct. 2039, and the opinion's failure to state more explicitly that the defendant is entitled to "the presence of counsel [in open court]," id., at 662, 104 S. Ct. 2039, I acquiesce in this Court's conclusion that the state-court decision was not an unreasonable application of clearly established federal law. In doing so, however, I emphasize that today's opinion does not say that the state courts' interpretation of Cronic was correct, or that we would have accepted that reading if the case had come to us on direct review rather than by way of 28 U.S.C. § 2254. See ante, at 746-747; see also Williams, 529 U.S., at 410 ("[A]n unreasonable application of federal law is different from an incorrect application of federal law").

An unfortunate drafting error in the Court's opinion in United makes it necessary to join the Court's judgment in this case. In Cronic, this Court explained that some violations of the right to arise in "circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified." One such circumstance exists when the accused is "denied the presence of at a critical stage of the prosecution." We noted that the "presence" of lawyers "is essential because they are the means through which the other rights of the person on trial are secured." Regrettably, Cronic did not "clearly establish" the full scope of the defendant's right to the presence of an attorney. See (d)(1). The Court of Appeals apparently read "the presence of " in Cronic to mean "the presence of in open court." Initially, all three judges on the panel assumed that the constitutional right at stake was the right to have by one's side at all critical stages of the proceeding.[*] See also Van Patten v. Deppisch, No. 04-1276, 2006 U.S.App. LEXIS 5147 (CA7, Feb. 27, 2006) (noting that no *748 member of the Seventh Circuit requested a vote on the warden's petition for rehearing en banc). In my view, this interpretation is correct. The fact that in when Cronic was decided, neither the parties nor the Court contemplated representation by attorneys who were not present in the flesh explains the author's failure to add the words "in open court" after the word "present." As the Court explains today, however, the question is not the reasonableness of the federal court's interpretation of Cronic, but rather whether the Wisconsin court's narrower reading of that opinion was "objectively unreasonable." In light of Cronic's references to the "complete denial of " and "totally absent" and n. 25, and the opinion's failure to state more explicitly that the defendant is entitled to "the presence of [in open court]," I acquiesce in this Court's conclusion that the state-court decision was not an unreasonable application of clearly established federal law. In doing so, however, I emphasize that today's opinion does not say that the state courts' interpretation of Cronic was correct, or that we would have accepted that reading if the case had come to us on direct review rather than by way of See ante, at 746-747; see also

Justice Alito

majority

Birchfield v. North Dakota

2016-06-23

https://www.courtlistener.com/opinion/3216497/birchfield-v-north-dakota/

https://www.courtlistener.com/api/rest/v3/clusters/3216497/

2015-068

Drunk drivers take a grisly toll on the Nation’s roads, claiming thousands of lives, injuring many more victims, and inflicting billions of dollars in property damage every 2 BIRCHFIELD v. NORTH DAKOTA Opinion of the Court year. To fight this problem, all States have laws that prohibit motorists from driving with a blood alcohol con­ centration (BAC) that exceeds a specified level. But de­ termining whether a driver’s BAC is over the legal limit requires a test, and many drivers stopped on suspicion of drunk driving would not submit to testing if given the option. So every State also has long had what are termed “implied consent laws.” These laws impose penalties on motorists who refuse to undergo testing when there is sufficient reason to believe they are violating the State’s drunk-driving laws. In the past, the typical penalty for noncompliance was suspension or revocation of the motorist’s license. The cases now before us involve laws that go beyond that and make it a crime for a motorist to refuse to be tested after being lawfully arrested for driving while impaired. The question presented is whether such laws violate the Fourth Amendment’s prohibition against unreasonable searches. I The problem of drunk driving arose almost as soon as motor vehicles came into use. See J. Jacobs, Drunk Driv­ ing: An American Dilemma 57 (1989) (Jacobs). New Jer­ sey enacted what was perhaps the Nation’s first drunk- driving law in 1906, 1906 N. J. Laws pp. 186, 196, and other States soon followed. These early laws made it illegal to drive while intoxicated but did not provide a statistical definition of intoxication. As a result, prosecu­ tors normally had to present testimony that the defendant was showing outward signs of intoxication, like imbalance or slurred speech. R. Donigan, Chemical Tests and the Law 2 (1966) (Donigan). As one early case put it, “[t]he effects resulting from the drinking of intoxicating liquors are manifested in various ways, and before any one can be shown to be under the influence of intoxicating liquor it is Cite as: 579 U. S. ____ (2016) 3 Opinion of the Court necessary for some witness to prove that some one or more of these effects were perceptible to him.” State v. Noble, 119 Ore. 674, 677, 250 P. 833, 834 (1926). The 1930’s saw a continued rise in the number of motor vehicles on the roads, an end to Prohibition, and not coin­ cidentally an increased interest in combating the growing problem of drunk driving. Jones, Measuring Alcohol in Blood and Breath for Forensic Purposes—A Historical Review, 8 For. Sci. Rev. 13, 20, 33 (1996) (Jones). The American Medical Association and the National Safety Council set up committees to study the problem and ulti­ mately concluded that a driver with a BAC of 0.15% or higher could be presumed to be inebriated. Donigan 21– 22. In 1939, Indiana enacted the first law that defined presumptive intoxication based on BAC levels, using the recommended 0.15% standard. 1939 Ind. Acts p. 309; Jones 21. Other States soon followed and then, in re­ sponse to updated guidance from national organizations, lowered the presumption to a BAC level of 0.10%. Don­ igan 22–23. Later, States moved away from mere pre­ sumptions that defendants might rebut, and adopted laws providing that driving with a 0.10% BAC or higher was per se illegal. Jacobs 69–70. Enforcement of laws of this type obviously requires the measurement of BAC. One way of doing this is to analyze a sample of a driver’s blood directly. A technician with medical training uses a syringe to draw a blood sample from the veins of the subject, who must remain still during the procedure, and then the sample is shipped to a sepa­ rate laboratory for measurement of its alcohol concentra­ tion. See 2 R. Erwin, Defense of Drunk Driving Cases §§17.03–17.04 (3d ed. 2015) (Erwin). Although it is possi­ ble for a subject to be forcibly immobilized so that a sam­ ple may be drawn, many States prohibit drawing blood from a driver who resists since this practice helps “to avoid violent confrontations.” South Dakota v. Neville, 4 BIRCHFIELD v. NORTH DAKOTA Opinion of the Court 459 U.S. 553, 559 (1983). The most common and economical method of calculating BAC is by means of a machine that measures the amount of alcohol in a person’s breath. National Highway Traffic Safety Admin. (NHTSA), E. Haire, W. Leaf, D. Preusser, & M. Solomon, Use of Warrants to Reduce Breath Test Re­ fusals: Experiences from North Carolina 1 (No. 811461, Apr. 2011). One such device, called the “Drunkometer,” was invented and first sold in the 1930’s. Note, 30 N. C. L. Rev. 302, 303, and n. 10 (1952). The test subject would inflate a small balloon, and then the test analyst would release this captured breath into the machine, which forced it through a chemical solution that reacted to the presence of alcohol by changing color. Id., at 303. The test analyst could observe the amount of breath required to produce the color change and calculate the subject’s breath alcohol concentration and by extension, BAC, from this figure. Id., at 303–304. A more practical machine, called the “Breathalyzer,” came into common use beginning in the 1950’s, relying on the same basic scientific principles. 3 Erwin §22.01, at 22–3; Jones 34. Over time, improved breath test machines were devel­ oped. Today, such devices can detect the presence of alcohol more quickly and accurately than before, typically using infrared technology rather than a chemical reaction. 2 Erwin §18A.01; Jones 36. And in practice all breath testing machines used for evidentiary purposes must be approved by the National Highway Traffic Safety Admin­ istration. See 1 H. Cohen & J. Green, Apprehending and Prosecuting the Drunk Driver §7.04[7] (LexisNexis 2015). These machines are generally regarded as very reliable because the federal standards require that the devices produce accurate and reproducible test results at a variety of BAC levels, from the very low to the very high. 77 Fed. Reg. 35747 (2012); 2 Erwin §18.07; Jones 38; see also California v. Trombetta, 467 U.S. 479, 489 (1984). Cite as: 579 U. S. ____ (2016) 5 Opinion of the Court Measurement of BAC based on a breath test requires the cooperation of the person being tested. The subject must take a deep breath and exhale through a mouthpiece that connects to the machine. Berger, How Does it Work? Alcohol Breath Testing, 325 British Medical J. 1403 (2002) (Berger). Typically the test subject must blow air into the device “ ‘for a period of several seconds’ ” to produce an adequate breath sample, and the process is sometimes repeated so that analysts can compare multiple samples to ensure the device’s accuracy. Trombetta, supra, at 481; see also 2 Erwin §21.04[2][b](L), at 21–14 (describing the Intoxilyzer 4011 device as requiring a 12-second exhala­ tion, although the subject may take a new breath about halfway through). Modern breath test machines are designed to capture so-called “deep lung” or alveolar air. Trombetta, supra, at 481. Air from the alveolar region of the lungs provides the best basis for determining the test subject’s BAC, for it is in that part of the lungs that alcohol vapor and other gases are exchanged between blood and breath. 2 Erwin §18.01[2][a], at 18–7. When a standard infrared device is used, the whole process takes only a few minutes from start to finish. Berger 1403; 2 Erwin §18A.03[2], at 18A–14. Most evi­ dentiary breath tests do not occur next to the vehicle, at the side of the road, but in a police station, where the controlled environment is especially conducive to reliable testing, or in some cases in the officer’s patrol vehicle or in special mobile testing facilities. NHTSA, A. Berning et al., Refusal of Intoxication Testing: A Report to Congress 4, and n. 5 (No. 811098, Sept. 2008). Because the cooperation of the test subject is necessary when a breath test is administered and highly preferable when a blood sample is taken, the enactment of laws defining intoxication based on BAC made it necessary for 6 BIRCHFIELD v. NORTH DAKOTA Opinion of the Court States to find a way of securing such cooperation.1 So- called “implied consent” laws were enacted to achieve this result. They provided that cooperation with BAC testing was a condition of the privilege of driving on state roads and that the privilege would be rescinded if a suspected drunk driver refused to honor that condition. Donigan 177. The first such law was enacted by New York in 1953, and many other States followed suit not long thereafter. Id., at 177–179. In 1962, the Uniform Vehicle Code also included such a provision. Id., at 179. Today, “all 50 States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to BAC testing if they are arrested or otherwise detained on suspicion of a drunk- driving offense.” Missouri v. McNeely, 569 U. S. ___, ___ (2013) (plurality opinion) (slip op., at 18). Suspension or revocation of the motorist’s driver’s license remains the standard legal consequence of refusal. In addition, evi­ dence of the motorist’s refusal is admitted as evidence of likely intoxication in a drunk-driving prosecution. See ibid. In recent decades, the States and the Federal Govern­ ment have toughened drunk-driving laws, and those ef­ forts have corresponded to a dramatic decrease in alcohol- related fatalities. As of the early 1980’s, the number of annual fatalities averaged 25,000; by 2014, the most re­ cent year for which statistics are available, the number had fallen to below 10,000. Presidential Commission on Drunk Driving 1 (Nov. 1983); NHTSA, Traffic Safety Facts, 2014 Data, Alcohol-Impaired Driving 2 (No. 812231, Dec. 2015) (NHTSA, 2014 Alcohol-Impaired Driving). One —————— 1 In addition, BAC may be determined by testing a subject’s urine, which also requires the test subject’s cooperation. But urine tests appear to be less common in drunk-driving cases than breath and blood tests, and none of the cases before us involves one. Cite as: 579 U. S. ____ (2016) 7 Opinion of the Court legal change has been further lowering the BAC standard from 0.10% to 0.08%. See 1 Erwin, §2.01[1], at 2–3 to 2–4. In addition, many States now impose increased penalties for recidivists and for drivers with a BAC level that ex­ ceeds a higher threshold. In North Dakota, for example, the standard penalty for first-time drunk-driving offenders is license suspension and a fine. N. D. Cent. Code Ann. §39–08–01(5)(a)(1) (Supp. 2015); §39–20–04.1(1). But an offender with a BAC of 0.16% or higher must spend at least two days in jail. §39–08–01(5)(a)(2). In addition, the State imposes increased mandatory minimum sentences for drunk-driving recidivists. §§39–08–01(5)(b)–(d). Many other States have taken a similar approach, but this new structure threatened to undermine the effective­ ness of implied consent laws. If the penalty for driving with a greatly elevated BAC or for repeat violations ex­ ceeds the penalty for refusing to submit to testing, motor­ ists who fear conviction for the more severely punished offenses have an incentive to reject testing. And in some States, the refusal rate is high. On average, over one-fifth of all drivers asked to submit to BAC testing in 2011 refused to do so. NHTSA, E. Namuswe, H. Coleman, & A. Berning, Breath Test Refusal Rates in the United States— 2011 Update 1 (No. 811881, Mar. 2014). In North Dakota, the refusal rate for 2011 was a representative 21%. Id., at 2. Minnesota’s was below average, at 12%. Ibid. To combat the problem of test refusal, some States have begun to enact laws making it a crime to refuse to undergo testing. Minnesota has taken this approach for decades. See 1989 Minn. Laws p. 1658; 1992 Minn. Laws p. 1947. And that may partly explain why its refusal rate now is below the national average. Minnesota’s rate is also half the 24% rate reported for 1988, the year before its first criminal refusal law took effect. See Ross, Simon, Cleary, Lewis, & Storkamp, Causes and Consequences of Implied Consent Refusal, 11 Alcohol, Drugs and Driving 57, 69 8 BIRCHFIELD v. NORTH DAKOTA Opinion of the Court (1995). North Dakota adopted a similar law, in 2013, after a pair of drunk-driving accidents claimed the lives of an entire young family and another family’s 5- and 9-year-old boys.2 2013 N. D. Laws pp. 1087–1088 (codified at §§39– 08–01(1)–(3)). The Federal Government also encourages this approach as a means for overcoming the incentive that drunk drivers have to refuse a test. NHTSA, Refusal of Intoxication Testing, at 20. II A Petitioner Danny Birchfield accidentally drove his car off a North Dakota highway on October 10, 2013. A state trooper arrived and watched as Birchfield unsuccessfully tried to drive back out of the ditch in which his car was stuck. The trooper approached, caught a strong whiff of alcohol, and saw that Birchfield’s eyes were bloodshot and watery. Birchfield spoke in slurred speech and struggled to stay steady on his feet. At the trooper’s request, Birch- field agreed to take several field sobriety tests and per­ formed poorly on each. He had trouble reciting sections of the alphabet and counting backwards in compliance with the trooper’s directions. Believing that Birchfield was intoxicated, the trooper informed him of his obligation under state law to agree to a BAC test. Birchfield consented to a roadside breath test. The device used for this sort of test often differs from the machines used for breath tests administered in a police station and is intended to provide a preliminary assess­ ment of the driver’s BAC. See, e.g., Berger 1403. Because the reliability of these preliminary or screening breath —————— 2 See Smith, Moving From Grief to Action: Two Families Push for Stronger DUI Laws in N. D., Bismarck Tribune, Feb. 2, 2013, p. 1A; Haga, Some Kind of Peace: Parents of Two Young Boys Killed in Campground Accident Urge for Tougher DUI Penalties in N. D., Grand Forks Herald, Jan. 15, 2013, pp. A1–A2. Cite as: 579 U. S. ____ (2016) 9 Opinion of the Court tests varies, many jurisdictions do not permit their numer­ ical results to be admitted in a drunk-driving trial as evidence of a driver’s BAC. See generally 3 Erwin §24.03[1]. In North Dakota, results from this type of test are “used only for determining whether or not a further test shall be given.” N. D. Cent. Code Ann. §39–20–14(3). In Birchfield’s case, the screening test estimated that his BAC was 0.254%, more than three times the legal limit of 0.08%. See §39–08–01(1)(a). The state trooper arrested Birchfield for driving while impaired, gave the usual Miranda warnings, again ad­ vised him of his obligation under North Dakota law to undergo BAC testing, and informed him, as state law requires, see §39–20–01(3)(a), that refusing to take the test would expose him to criminal penalties. In addition to mandatory addiction treatment, sentences range from a mandatory fine of $500 (for first-time offenders) to fines of at least $2,000 and imprisonment of at least one year and one day (for serial offenders). §39–08–01(5). These crimi­ nal penalties apply to blood, breath, and urine test refus­ als alike. See §§39–08–01(2), 39–20–01, 39–20–14. Although faced with the prospect of prosecution under this law, Birchfield refused to let his blood be drawn. Just three months before, Birchfield had received a citation for driving under the influence, and he ultimately pleaded guilty to that offense. State v. Birchfield, Crim. No. 30– 2013–CR–00720 (Dist. Ct. Morton Cty., N. D., Jan. 27, 2014). This time he also pleaded guilty—to a misde- meanor violation of the refusal statute—but his plea was a conditional one: while Birchfield admitted refusing the blood test, he argued that the Fourth Amendment prohib­ ited criminalizing his refusal to submit to the test. The State District Court rejected this argument and imposed a sentence that accounted for his prior conviction. Cf. §39– 08–01(5)(b). The sentence included 30 days in jail (20 of which were suspended and 10 of which had already been 10 BIRCHFIELD v. NORTH DAKOTA Opinion of the Court served), 1 year of unsupervised probation, $1,750 in fine and fees, and mandatory participation in a sobriety pro­ gram and in a substance abuse evaluation. App. to Pet. for Cert. in No. 14–1468, p. 20a. On appeal, the North Dakota Supreme Court affirmed. 2015 ND 6, 858 N.W.2d 302. The court found support for the test refusal statute in this Court’s McNeely plurality opinion, which had spoken favorably about “acceptable ‘legal tools’ with ‘significant consequences’ for refusing to submit to testing.” 858 N.W.2d, at 307 (quoting McNeely, 569 U. S., at ___ (slip op., at 18)). B On August 5, 2012, Minnesota police received a report of a problem at a South St. Paul boat launch. Three appar­ ently intoxicated men had gotten their truck stuck in the river while attempting to pull their boat out of the water. When police arrived, witnesses informed them that a man in underwear had been driving the truck. That man proved to be William Robert Bernard, Jr., petitioner in the second of these cases. Bernard admitted that he had been drinking but denied driving the truck (though he was holding its keys) and refused to perform any field sobriety tests. After noting that Bernard’s breath smelled of alco­ hol and that his eyes were bloodshot and watery, officers arrested Bernard for driving while impaired. Back at the police station, officers read Bernard Minne­ sota’s implied consent advisory, which like North Dakota’s informs motorists that it is a crime under state law to refuse to submit to a legally required BAC test. See Minn. Stat. §169A.51, subd. 2 (2014). Aside from noncriminal penalties like license revocation, §169A.52, subd. 3, test refusal in Minnesota can result in criminal penalties ranging from no more than 90 days’ imprisonment and up to a $1,000 fine for a misdemeanor violation to seven years’ imprisonment and a $14,000 fine for repeat offend­ Cite as: 579 U. S. ____ (2016) 11 Opinion of the Court ers, §169A.03, subd. 12; §169A.20, subds. 2–3; §169A.24, subd. 2; §169A.27, subd. 2. The officers asked Bernard to take a breath test. After he refused, prosecutors charged him with test refusal in the first degree because he had four prior impaired-driving convictions. 859 N.W.2d 762, 765, n. 1 (Minn. 2015) (case below). First-degree refusal carries the highest maximum penalties and a mandatory minimum 3-year prison sen­ tence. §169A.276, subd. 1. The Minnesota District Court dismissed the charges on the ground that the warrantless breath test demanded of Bernard was not permitted under the Fourth Amendment. App. to Pet. for Cert. in No. 14–1470, pp. 48a, 59a. The Minnesota Court of Appeals reversed, id., at 46a, and the State Supreme Court affirmed that judgment. Based on the longstanding doctrine that authorizes warrantless searches incident to a lawful arrest, the high court con­ cluded that police did not need a warrant to insist on a test of Bernard’s breath. 859 N.W.2d, at 766–772. Two justices dissented. Id., at 774–780 (opinion of Page and Stras, JJ.). C A police officer spotted our third petitioner, Steve Mi­ chael Beylund, driving the streets of Bowman, North Dakota, on the night of August 10, 2013. The officer saw Beylund try unsuccessfully to turn into a driveway. In the process, Beylund’s car nearly hit a stop sign before coming to a stop still partly on the public road. The officer walked up to the car and saw that Beylund had an empty wine glass in the center console next to him. Noticing that Beylund also smelled of alcohol, the officer asked him to step out of the car. As Beylund did so, he struggled to keep his balance. The officer arrested Beylund for driving while impaired and took him to a nearby hospital. There he read Beylund 12 BIRCHFIELD v. NORTH DAKOTA Opinion of the Court North Dakota’s implied consent advisory, informing him that test refusal in these circumstances is itself a crime. See N. D. Cent. Code Ann. §39–20–01(3)(a). Unlike the other two petitioners in these cases, Beylund agreed to have his blood drawn and analyzed. A nurse took a blood sample, which revealed a blood alcohol concentration of 0.250%, more than three times the legal limit. Given the test results, Beylund’s driver’s license was suspended for two years after an administrative hearing. Beylund appealed the hearing officer’s decision to a North Dakota District Court, principally arguing that his con­ sent to the blood test was coerced by the officer’s warning that refusing to consent would itself be a crime. The District Court rejected this argument, and Beylund again appealed. The North Dakota Supreme Court affirmed. In re­ sponse to Beylund’s argument that his consent was insuf­ ficiently voluntary because of the announced criminal penalties for refusal, the court relied on the fact that its then-recent Birchfield decision had upheld the constitu­ tionality of those penalties. 2015 ND 18, ¶¶14–15, 859 N.W.2d 403, 408–409. The court also explained that it had found consent offered by a similarly situated motorist to be voluntary, State v. Smith, 2014 ND 152, 849 N.W. 2d 599. In that case, the court emphasized that North Dakota’s implied consent advisory was not misleading because it truthfully related the penalties for refusal. Id., at 606. We granted certiorari in all three cases and consolidated them for argument, see 577 U. S. ___ (2015), in order to decide whether motorists lawfully arrested for drunk driving may be convicted of a crime or otherwise penalized for refusing to take a warrantless test measuring the alcohol in their bloodstream. Cite as: 579 U. S. ____ (2016) 13 Opinion of the Court III As our summary of the facts and proceedings in these three cases reveals, the cases differ in some respects. Petitioners Birchfield and Beylund were told that they were obligated to submit to a blood test, whereas petitioner Bernard was informed that a breath test was required. Birchfield and Bernard each refused to undergo a test and was convicted of a crime for his refusal. Beylund complied with the demand for a blood sample, and his license was then suspended in an administrative proceeding based on test results that revealed a very high blood alcohol level. Despite these differences, success for all three petition­ ers depends on the proposition that the criminal law ordi­ narily may not compel a motorist to submit to the taking of a blood sample or to a breath test unless a warrant authorizing such testing is issued by a magistrate. If, on the other hand, such warrantless searches comport with the Fourth Amendment, it follows that a State may crimi­ nalize the refusal to comply with a demand to submit to the required testing, just as a State may make it a crime for a person to obstruct the execution of a valid search warrant. See, e.g., Conn. Gen. Stat. §54–33d (2009); Fla. Stat. §933.15 (2015); N. J. Stat. Ann. §33:1–63 (West 1994); 18 U.S. C. §1501; cf. Bumper v. North Carolina, 391 U.S. 543, 550 (1968) (“When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search”). And by the same token, if such warrantless searches are constitutional, there is no obstacle under federal law to the admission of the results that they yield in either a criminal prosecution or a civil or administrative proceeding. We therefore begin by considering whether the searches demanded in these cases were consistent with the Fourth Amendment. 14 BIRCHFIELD v. NORTH DAKOTA Opinion of the Court IV The Fourth Amendment provides: “The right of the people to be secure in their per­ sons, houses, papers, and effects, against unreasona­ ble searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Amendment thus prohibits “unreasonable searches,” and our cases establish that the taking of a blood sam- ple or the administration of a breath test is a search. See Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 616–617 (1989); Schmerber v. California, 384 U.S. 757, 767–768 (1966). The question, then, is whether the warrantless searches at issue here were reasonable. See Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 652 (1995) (“As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a govern­ mental search is ‘reasonableness’ ”). “[T]he text of the Fourth Amendment does not specify when a search warrant must be obtained.” Kentucky v. King, 563 U.S. 452, 459 (2011); see also California v. Acevedo, 500 U.S. 565, 581 (1991) (Scalia, J., concur- ring in judgment) (“What [the text] explicitly states regard- ing warrants is by way of limitation upon their issuance rather than requirement of their use”). But “this Court has inferred that a warrant must [usually] be secured.” King, 563 U.S., at 459. This usual requirement, however, is subject to a number of exceptions. Ibid. We have previously had occasion to examine whether one such exception—for “exigent circumstances”—applies in drunk-driving investigations. The exigent circum- stances exception allows a warrantless search when an emergency leaves police insufficient time to seek a warrant. Cite as: 579 U. S. ____ (2016) 15 Opinion of the Court Michigan v. Tyler, 436 U.S. 499, 509 (1978). It permits, for instance, the warrantless entry of private property when there is a need to provide urgent aid to those inside, when police are in hot pursuit of a fleeing suspect, and when police fear the imminent destruction of evidence. King, supra, at 460. In Schmerber v. California, we held that drunk driving may present such an exigency. There, an officer directed hospital personnel to take a blood sample from a driver who was receiving treatment for car crash injuries. 384 U.S., at 758. The Court concluded that the officer “might reasonably have believed that he was confronted with an emergency” that left no time to seek a warrant because “the percentage of alcohol in the blood begins to diminish shortly after drinking stops.” Id., at 770. On the specific facts of that case, where time had already been lost taking the driver to the hospital and investigating the accident, the Court found no Fourth Amendment violation even though the warrantless blood draw took place over the driver’s objection. Id., at 770–772. More recently, though, we have held that the natural dissipation of alcohol from the bloodstream does not al- ways constitute an exigency justifying the warrantless taking of a blood sample. That was the holding of Mis- souri v. McNeely, 569 U. S. ___, where the State of Mis­ souri was seeking a per se rule that “whenever an officer has probable cause to believe an individual has been driving under the influence of alcohol, exigent circum­ stances will necessarily exist because BAC evidence is inherently evanescent.” Id., at ___ (opinion of the Court) (slip op., at 8). We disagreed, emphasizing that Schmerber had adopted a case-specific analysis depending on “all of the facts and circumstances of the particular case.” 569 U. S., at ___ (slip op., at 8). We refused to “depart from careful case-by-case assessment of exigency and adopt the categorical rule proposed by the State.” Id., at ___ (slip 16 BIRCHFIELD v. NORTH DAKOTA Opinion of the Court op., at 9). While emphasizing that the exigent-circumstances exception must be applied on a case-by-case basis, the McNeely Court noted that other exceptions to the warrant requirement “apply categorically” rather than in a “case- specific” fashion. Id., at ___, n. 3 (slip op., at 7, n. 3). One of these, as the McNeely opinion recognized, is the long- established rule that a warrantless search may be con­ ducted incident to a lawful arrest. See ibid. But the Court pointedly did not address any potential justification for warrantless testing of drunk-driving suspects except for the exception “at issue in th[e] case,” namely, the exception for exigent circumstances. Id., at ___ (slip op., at 5). Neither did any of the Justices who wrote separately. See id., at ___–___ (KENNEDY, J., concurring in part) (slip op., at 1–2); id., at ___–___ (ROBERTS, C. J., concur­ ring in part and dissenting in part) (slip op., at 1–11); id., at ___–___ (THOMAS, J., dissenting) (slip op., at 1–8). In the three cases now before us, the drivers were searched or told that they were required to submit to a search after being placed under arrest for drunk driving. We therefore consider how the search-incident-to-arrest doctrine applies to breath and blood tests incident to such arrests. V A The search-incident-to-arrest doctrine has an ancient pedigree. Well before the Nation’s founding, it was recog­ nized that officers carrying out a lawful arrest had the authority to make a warrantless search of the arrestee’s person. An 18th-century manual for justices of the peace provides a representative picture of usual practice shortly before the Fourth Amendment’s adoption: “[A] thorough search of the felon is of the utmost con­ sequence to your own safety, and the benefit of the Cite as: 579 U. S. ____ (2016) 17 Opinion of the Court public, as by this means he will be deprived of in­ struments of mischief, and evidence may probably be found on him sufficient to convict him, of which, if he has either time or opportunity allowed him, he will besure [sic] to find some means to get rid of.” The Conductor Generalis 117 (J. Parker ed. 1788) (reprint­ ing S. Welch, Observations on the Office of Constable 19 (1754)). One Fourth Amendment historian has observed that, prior to American independence, “[a]nyone arrested could expect that not only his surface clothing but his body, luggage, and saddlebags would be searched and, perhaps, his shoes, socks, and mouth as well.” W. Cuddihy, The Fourth Amendment: Origins and Original Meaning: 602– 1791, p. 420 (2009). No historical evidence suggests that the Fourth Amendment altered the permissible bounds of arrestee searches. On the contrary, legal scholars agree that “the legitimacy of body searches as an adjunct to the arrest process had been thoroughly established in colonial times, so much so that their constitutionality in 1789 can not be doubted.” Id., at 752; see also T. Taylor, Two Studies in Constitutional Interpretation 28–29, 39, 45 (1969); Stuntz, The Substantive Origins of Criminal Procedure, 105 Yale L. J. 393, 401 (1995). Few reported cases addressed the legality of such searches before the 19th century, apparently because the point was not much contested. In the 19th century, the subject came up for discussion more often, but court deci­ sions and treatises alike confirmed the searches’ broad acceptance. E.g., Holker v. Hennessey, 141 Mo. 527, 539– 540, 42 S.W. 1090, 1093 (1897); Ex parte Hurn, 92 Ala. 102, 112, 9 So. 515, 519 (1891); Thatcher v. Weeks, 79 Me. 547, 548–549, 11 A. 599 (1887); Reifsnyder v. Lee, 44 Iowa 101, 103 (1876); F. Wharton, Criminal Pleading and Prac­ 18 BIRCHFIELD v. NORTH DAKOTA Opinion of the Court tice §60, p. 45 (8th ed. 1880); 1 J. Bishop, Criminal Proce­ dure §211, p. 127 (2d ed. 1872). When this Court first addressed the question, we too confirmed (albeit in dicta) “the right on the part of the Government, always recognized under English and Ameri­ can law, to search the person of the accused when legally arrested to discover and seize the fruits or evidence of crime.” Weeks v. United States, 232 U.S. 383, 392 (1914). The exception quickly became a fixture in our Fourth Amendment case law. But in the decades that followed, we grappled repeatedly with the question of the authority of arresting officers to search the area surrounding the arrestee, and our decisions reached results that were not easy to reconcile. See, e.g., United States v. Lefkowitz, 285 U.S. 452, 464 (1932) (forbidding “unrestrained” search of room where arrest was made); Harris v. United States, 331 U.S. 145, 149, 152 (1947) (permitting complete search of arrestee’s four-room apartment); United States v. Rab- inowitz, 339 U.S. 56, 60–65 (1950) (permitting complete search of arrestee’s office). We attempted to clarify the law regarding searches incident to arrest in Chimel v. California, 395 U.S. 752, 754 (1969), a case in which officers had searched the ar­ restee’s entire three-bedroom house. Chimel endorsed a general rule that arresting officers, in order to prevent the arrestee from obtaining a weapon or destroying evidence, could search both “the person arrested” and “the area ‘within his immediate control.’ ” Id., at 763. “[N]o compa­ rable justification,” we said, supported “routinely search­ ing any room other than that in which an arrest occurs— or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself.” Ibid. Four years later, in United States v. Robinson, 414 U.S. 218 (1973), we elaborated on Chimel’s meaning. We noted that the search-incident-to-arrest rule actually comprises Cite as: 579 U. S. ____ (2016) 19 Opinion of the Court “two distinct propositions”: “The first is that a search may be made of the person of the arrestee by virtue of the lawful arrest. The second is that a search may be made of the area within the control of the arrestee.” 414 U.S., at 224. After a thorough review of the relevant common law history, we repudiated “case-by-case adjudication” of the question whether an arresting officer had the authority to carry out a search of the arrestee’s person. Id., at 235. The permissibility of such searches, we held, does not depend on whether a search of a particular arrestee is likely to protect officer safety or evidence: “The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evi­ dence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect.” Ibid. Instead, the mere “fact of the lawful arrest” justifies “a full search of the person.” Ibid. In Robinson itself, that meant that police had acted per­ missibly in searching inside a package of cigarettes found on the man they arrested. Id., at 236. Our decision two Terms ago in Riley v. California, 573 U. S. ___ (2014), reaffirmed “Robinson’s categorical rule” and explained how the rule should be applied in situations that could not have been envisioned when the Fourth Amendment was adopted. Id., at ___ (slip op., at 9). Riley concerned a search of data contained in the memory of a modern cell phone. “Absent more precise guidance from the founding era,” the Court wrote, “we generally deter­ mine whether to exempt a given type of search from the warrant requirement ‘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.’ ” Ibid. Blood and breath tests to measure blood alcohol concen­ tration are not as new as searches of cell phones, but here, 20 BIRCHFIELD v. NORTH DAKOTA Opinion of the Court as in Riley, the founding era does not provide any defini­ tive guidance as to whether they should be allowed inci­ dent to arrest.3 Lacking such guidance, we engage in the same mode of analysis as in Riley: we examine “the degree to which [they] intrud[e] upon an individual’s privacy and . . . the degree to which [they are] needed for the promo­ tion of legitimate governmental interests.’ ” Ibid. B We begin by considering the impact of breath and blood tests on individual privacy interests, and we will discuss each type of test in turn. 1 Years ago we said that breath tests do not “implicat[e] significant privacy concerns.” Skinner, 489 U.S., at 626. That remains so today. First, the physical intrusion is almost negligible. Breath tests “do not require piercing the skin” and entail “a minimum of inconvenience.” Id., at 625. As Minnesota describes its version of the breath test, the process re­ quires the arrestee to blow continuously for 4 to 15 sec­ onds into a straw-like mouthpiece that is connected by a tube to the test machine. Brief for Respondent in No. 14– 1470, p. 20. Independent sources describe other breath test devices in essentially the same terms. See supra, at 5. The effort is no more demanding than blowing up a party balloon. Petitioner Bernard argues, however, that the process is nevertheless a significant intrusion because the arrestee must insert the mouthpiece of the machine into his or her —————— 3 At most, there may be evidence that an arrestee’s mouth could be searched in appropriate circumstances at the time of the founding. See W. Cuddihy, Fourth Amendment: Origins and Original Meaning: 602– 1791, p. 420 (2009). Still, searching a mouth for weapons or contraband is not the same as requiring an arrestee to give up breath or blood. Cite as: 579 U. S. ____ (2016) 21 Opinion of the Court mouth. Reply Brief in No. 14–1470, p. 9. But there is nothing painful or strange about this requirement. The use of a straw to drink beverages is a common practice and one to which few object. Nor, contrary to Bernard, is the test a significant intru­ sion because it “does not capture an ordinary exhalation of the kind that routinely is exposed to the public” but in­ stead “ ‘requires a sample of “alveolar” (deep lung) air.’ ” Brief for Petitioner in No. 14–1470, p. 24. Humans have never been known to assert a possessory interest in or any emotional attachment to any of the air in their lungs. The air that humans exhale is not part of their bodies. Exha­ lation is a natural process—indeed, one that is necessary for life. Humans cannot hold their breath for more than a few minutes, and all the air that is breathed into a breath analyzing machine, including deep lung air, sooner or later would be exhaled even without the test. See gener- ally J. Hall, Guyton and Hall Textbook of Medical Physiol­ ogy 519–520 (13th ed. 2016). In prior cases, we have upheld warrantless searches involving physical intrusions that were at least as signifi­ cant as that entailed in the administration of a breath test. Just recently we described the process of collecting a DNA sample by rubbing a swab on the inside of a person’s cheek as a “negligible” intrusion. Maryland v. King, 569 U. S. ___, ___ (2013) (slip op., at 8). We have also upheld scraping underneath a suspect’s fingernails to find evi­ dence of a crime, calling that a “very limited intrusion.” Cupp v. Murphy, 412 U.S. 291, 296 (1973). A breath test is no more intrusive than either of these procedures. Second, breath tests are capable of revealing only one bit of information, the amount of alcohol in the subject’s breath. In this respect, they contrast sharply with the sample of cells collected by the swab in Maryland v. King. Although the DNA obtained under the law at issue in that case could lawfully be used only for identification pur- 22 BIRCHFIELD v. NORTH DAKOTA Opinion of the Court poses, 569 U. S., at ___ (slip op., at 5), the process put into the possession of law enforcement authorities a sample from which a wealth of additional, highly personal information could potentially be obtained. A breath test, by contrast, results in a BAC reading on a machine, nothing more. No sample of anything is left in the possession of the police. Finally, participation in a breath test is not an experi­ ence that is likely to cause any great enhancement in the embarrassment that is inherent in any arrest. See Skin- ner, supra, at 625 (breath test involves “a minimum of . . . embarrassment”). The act of blowing into a straw is not inherently embarrassing, nor are evidentiary breath tests administered in a manner that causes embarrassment. Again, such tests are normally administered in private at a police station, in a patrol car, or in a mobile testing facility, out of public view. See supra, at 5. Moreover, once placed under arrest, the individual’s expectation of privacy is necessarily diminished. Maryland v. King, supra, at ___–___ (slip op., at 24–25). For all these reasons, we reiterate what we said in Skinner: A breath test does not “implicat[e] significant privacy concerns.” 489 U.S., at 626. 2 Blood tests are a different matter. They “require pierc­ ing the skin” and extract a part of the subject’s body. Skinner, supra, at 625; see also McNeely, 569 U. S., at ___ (opinion of the Court) (slip op., at 4) (blood draws are “a compelled physical intrusion beneath [the defendant’s] skin and into his veins”); id., at ___ (opinion of ROBERTS, C. J.) (slip op., at 9) (blood draws are “significant bodily intrusions”). And while humans exhale air from their lungs many times per minute, humans do not continually shed blood. It is true, of course, that people voluntarily submit to the taking of blood samples as part of a physical examination, and the process involves little pain or risk. Cite as: 579 U. S. ____ (2016) 23 Opinion of the Court See id., at ___ (plurality opinion) (slip op., at 16) (citing Schmerber, 384 U.S., at 771). Nevertheless, for many, the process is not one they relish. It is significantly more intrusive than blowing into a tube. Perhaps that is why many States’ implied consent laws, including Minnesota’s, specifically prescribe that breath tests be administered in the usual drunk-driving case instead of blood tests or give motorists a measure of choice over which test to take. See 1 Erwin §4.06; Minn. Stat. §169A.51, subd. 3. In addition, a blood test, unlike a breath test, places in the hands of law enforcement authorities a sample that can be preserved and from which it is possible to extract information beyond a simple BAC reading. Even if the law enforcement agency is precluded from testing the blood for any purpose other than to measure BAC, the potential remains and may result in anxiety for the person tested. C Having assessed the impact of breath and blood testing on privacy interests, we now look to the States’ asserted need to obtain BAC readings for persons arrested for drunk driving. 1 The States and the Federal Government have a “para­ mount interest . . . in preserving the safety of . . . public highways.” Mackey v. Montrym, 443 U.S. 1, 17 (1979). Although the number of deaths and injuries caused by motor vehicle accidents has declined over the years, the statistics are still staggering. See, e.g., NHTSA, Traffic Safety Facts 1995—Overview 2 (No. 95F7, 1995) (47,087 fatalities, 3,416,000 injuries in 1988); NHTSA, Traffic Safety Facts, 2014 Data, Summary of Motor Vehicle Crashes 1 (No. 812263, May 2016) (Table 1) (29,989 fatali­ ties, 1,648,000 injuries in 2014). 24 BIRCHFIELD v. NORTH DAKOTA Opinion of the Court Alcohol consumption is a leading cause of traffic fatali­ ties and injuries. During the past decade, annual fatali­ ties in drunk-driving accidents ranged from 13,582 deaths in 2005 to 9,865 deaths in 2011. NHTSA, 2014 Alcohol- Impaired Driving 2. The most recent data report a total of 9,967 such fatalities in 2014—on average, one death every 53 minutes. Id., at 1. Our cases have long recognized the “carnage” and “slaughter” caused by drunk drivers. Ne- ville, 459 U.S., at 558; Breithaupt v. Abram, 352 U.S. 432, 439 (1957). JUSTICE SOTOMAYOR’s partial dissent suggests that States’ interests in fighting drunk driving are satisfied once suspected drunk drivers are arrested, since such arrests take intoxicated drivers off the roads where they might do harm. See post, at 9 (opinion concurring in part and dissenting in part). But of course States are not solely concerned with neutralizing the threat posed by a drunk driver who has already gotten behind the wheel. They also have a compelling interest in creating effective “de­ terrent[s] to drunken driving” so such individuals make responsible decisions and do not become a threat to others in the first place. Mackey, supra, at 18. To deter potential drunk drivers and thereby reduce alcohol-related injuries, the States and the Federal Gov­ ernment have taken the series of steps that we recounted earlier. See supra, at 2–8. We briefly recapitulate. After pegging inebriation to a specific level of blood alcohol, States passed implied consent laws to induce motorists to submit to BAC testing. While these laws originally pro­ vided that refusal to submit could result in the loss of the privilege of driving and the use of evidence of refusal in a drunk-driving prosecution, more recently States and the Federal Government have concluded that these conse­ quences are insufficient. In particular, license suspension alone is unlikely to persuade the most dangerous offend­ ers, such as those who drive with a BAC significantly Cite as: 579 U. S. ____ (2016) 25 Opinion of the Court above the current limit of 0.08% and recidivists, to agree to a test that would lead to severe criminal sanctions. NHTSA, Implied Consent Refusal Impact, pp. xvii, 83 (No. 807765, Sept. 1991); NHTSA, Use of Warrants for Breath Test Refusal 1 (No. 810852, Oct. 2007). The laws at issue in the present cases—which make it a crime to refuse to submit to a BAC test—are designed to provide an incen­ tive to cooperate in such cases, and we conclude that they serve a very important function. 2 Petitioners and JUSTICE SOTOMAYOR contend that the States and the Federal Government could combat drunk driving in other ways that do not have the same impact on personal privacy. Their arguments are unconvincing. The chief argument on this score is that an officer mak­ ing an arrest for drunk driving should not be allowed to administer a BAC test unless the officer procures a search warrant or could not do so in time to obtain usable test results. The governmental interest in warrantless breath testing, JUSTICE SOTOMAYOR claims, turns on “ ‘whether the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search.’ ” Post, at 3–4 (quoting Camara v. Municipal Court of City and County of San Francisco, 387 U.S. 523, 533 (1967)). This argument contravenes our decisions holding that the legality of a search incident to arrest must be judged on the basis of categorical rules. In Robinson, for example, no one claimed that the object of the search, a package of cigarettes, presented any danger to the arresting officer or was at risk of being destroyed in the time that it would have taken to secure a search warrant. The Court never­ theless upheld the constitutionality of a warrantless search of the package, concluding that a categorical rule was needed to give police adequate guidance: “A police officer’s determination as to how and where to search the 26 BIRCHFIELD v. NORTH DAKOTA Opinion of the Court person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search.” 414 U.S., at 235; cf. Riley, 573 U. S., at ___ (slip op., at 22) (“If police are to have workable rules, the balancing of the competing inter­ ests must in large part be done on a categorical basis—not in an ad hoc, case-by-case fashion by individual police officers” (brackets, ellipsis, and internal quotation marks omitted)). It is not surprising, then, that the language JUSTICE SOTOMAYOR quotes to justify her approach comes not from our search-incident-to-arrest case law, but a case that addressed routine home searches for possible housing code violations. See Camara, 387 U.S., at 526. Camara’s express concern in the passage that the dissent quotes was “whether the public interest demands creation of a general exception to the Fourth Amendment’s warrant require­ ment.” Id., at 533 (emphasis added). Camara did not explain how to apply an existing exception, let alone the long-established exception for searches incident to a lawful arrest, whose applicability, as Robinson and Riley make plain, has never turned on case-specific variables such as how quickly the officer will be able to obtain a warrant in the particular circumstances he faces. In advocating the case-by-case approach, petitioners and JUSTICE SOTOMAYOR cite language in our McNeely opin­ ion. See Brief for Petitioner in No. 14–1468, p. 14; post, at 12. But McNeely concerned an exception to the warrant requirement—for exigent circumstances—that always requires case-by-case determinations. That was the basis for our decision in that case. 569 U. S., at ___ (slip op., at 9). Although JUSTICE SOTOMAYOR contends that the categorical search-incident-to-arrest doctrine and case-by­ case exigent circumstances doctrine are actually parts of a single framework, post, at 6–7, and n. 3, in McNeely the Cite as: 579 U. S. ____ (2016) 27 Opinion of the Court Court was careful to note that the decision did not address any other exceptions to the warrant requirement, 569 U. S., at ___, n. 3 (slip op., at 7, n. 3). Petitioners and JUSTICE SOTOMAYOR next suggest that requiring a warrant for BAC testing in every case in which a motorist is arrested for drunk driving would not impose any great burden on the police or the courts. But of course the same argument could be made about searching through objects found on the arrestee’s possession, which our cases permit even in the absence of a warrant. What about the cigarette package in Robinson? What if a motor­ ist arrested for drunk driving has a flask in his pocket? What if a motorist arrested for driving while under the influence of marijuana has what appears to be a mari- juana cigarette on his person? What about an unmarked bottle of pills? If a search warrant were required for every search incident to arrest that does not involve exigent circum­ stances, the courts would be swamped. And even if we arbitrarily singled out BAC tests incident to arrest for this special treatment, as it appears the dissent would do, see post, at 12–14, the impact on the courts would be consid­ erable. The number of arrests every year for driving under the influence is enormous—more than 1.1 million in 2014. FBI, Uniform Crime Report, Crime in the United States, 2014, Arrests 2 (Fall 2015). Particularly in sparsely populated areas, it would be no small task for courts to field a large new influx of warrant applications that could come on any day of the year and at any hour. In many jurisdictions, judicial officers have the authority to issue warrants only within their own districts, see, e.g., Fed. Rule Crim. Proc. 41(b); N. D. Rule Crim. Proc. 41(a) (2016–2017), and in rural areas, some districts may have only a small number of judicial officers. North Dakota, for instance, has only 51 state district 28 BIRCHFIELD v. NORTH DAKOTA Opinion of the Court judges spread across eight judicial districts.4 Those judges are assisted by 31 magistrates, and there are no magis­ trates in 20 of the State’s 53 counties.5 At any given loca­ tion in the State, then, relatively few state officials have authority to issue search warrants.6 Yet the State, with a population of roughly 740,000, sees nearly 7,000 drunk- driving arrests each year. Office of North Dakota Attor­ ney General, Crime in North Dakota, 2014, pp. 5, 47 (2015). With a small number of judicial officers author­ ized to issue warrants in some parts of the State, the burden of fielding BAC warrant applications 24 hours per day, 365 days of the year would not be the light burden that petitioners and JUSTICE SOTOMAYOR suggest. In light of this burden and our prior search-incident-to­ arrest precedents, petitioners would at a minimum have to show some special need for warrants for BAC testing. It is therefore appropriate to consider the benefits that such applications would provide. Search warrants protect privacy in two main ways. First, they ensure that a search is not carried out unless a neutral magistrate makes an independent determination that there is proba­ ble cause to believe that evidence will be found. See, e.g., Riley, 573 U. S., at ___ (slip op., at 5). Second, if the mag­ istrate finds probable cause, the warrant limits the intru­ sion on privacy by specifying the scope of the search—that is, the area that can be searched and the items that can be sought. United States v. Chadwick, 433 U.S. 1, 9 (1977), —————— 4 See North Dakota Supreme Court, All District Judges, http:// www.ndcourts.gov/court/districts/judges.htm (all Internet materials as last visited June 21, 2016). 5 See North Dakota Supreme Court, Magistrates, http://www.ndcourts.gov/ court/counties/magistra/members.htm. 6 North Dakota Supreme Court justices apparently also have author- ity to issue warrants statewide. See ND Op. Atty. Gen. 99–L–132, p. 2 (Dec. 30, 1999). But we highly doubt that they regularly handle search- warrant applications, much less during graveyard shifts. Cite as: 579 U. S. ____ (2016) 29 Opinion of the Court abrogated on other grounds, Acevedo, 500 U.S. 565. How well would these functions be performed by the warrant applications that petitioners propose? In order to persuade a magistrate that there is probable cause for a search warrant, the officer would typically recite the same facts that led the officer to find that there was probable cause for arrest, namely, that there is probable cause to believe that a BAC test will reveal that the motorist’s blood alcohol level is over the limit. As these three cases suggest, see Part II, supra, the facts that establish proba­ ble cause are largely the same from one drunk-driving stop to the next and consist largely of the officer’s own characterization of his or her observations—for example, that there was a strong odor of alcohol, that the motorist wobbled when attempting to stand, that the motorist paused when reciting the alphabet or counting backwards, and so on. A magistrate would be in a poor position to challenge such characterizations. As for the second function served by search warrants— delineating the scope of a search—the warrants in ques­ tion here would not serve that function at all. In every case the scope of the warrant would simply be a BAC test of the arrestee. Cf. Skinner, 489 U.S., at 622 (“[I]n light of the standardized nature of the tests and the minimal discretion vested in those charged with administering the program, there are virtually no facts for a neutral magis­ trate to evaluate”). For these reasons, requiring the police to obtain a warrant in every case would impose a substan­ tial burden but no commensurate benefit. Petitioners advance other alternatives to warrantless BAC tests incident to arrest, but these are poor substi­ tutes. Relying on a recent NHTSA report, petitioner Birchfield identifies 19 strategies that he claims would be at least as effective as implied consent laws, including high-visibility sobriety checkpoints, installing ignition interlocks on repeat offenders’ cars that would disable 30 BIRCHFIELD v. NORTH DAKOTA Opinion of the Court their operation when the driver’s breath reveals a suffi­ ciently high alcohol concentration, and alcohol treatment programs. Brief for Petitioner in No. 14–1468, at 44–45. But Birchfield ignores the fact that the cited report de­ scribes many of these measures, such as checkpoints, as significantly more costly than test refusal penalties. NHTSA, A. Goodwin et al., Countermeasures That Work: A Highway Safety Countermeasures Guide for State Highway Safety Offices, p. 1–7 (No. 811727, 7th ed. 2013). Others, such as ignition interlocks, target only a segment of the drunk-driver population. And still others, such as treatment programs, are already in widespread use, see id., at 1–8, including in North Dakota and Minnesota. Moreover, the same NHTSA report, in line with the agen­ cy’s guidance elsewhere, stresses that BAC test refusal penalties would be more effective if the consequences for refusal were made more severe, including through the addition of criminal penalties. Id., at 1–16 to 1–17. 3 Petitioner Bernard objects to the whole idea of analyz­ ing breath and blood tests as searches incident to arrest. That doctrine, he argues, does not protect the sort of gov­ ernmental interests that warrantless breath and blood tests serve. On his reading, this Court’s precedents per­ mit a search of an arrestee solely to prevent the arrestee from obtaining a weapon or taking steps to destroy evi­ dence. See Reply Brief in No. 14–1470, at 4–6. In Chimel, for example, the Court derived its limitation for the scope of the permitted search—“the area into which an arrestee might reach”—from the principle that officers may rea­ sonably search “the area from within which he might gain possession of a weapon or destructible evidence.” 395 U.S., at 763. Stopping an arrestee from destroying evi­ dence, Bernard argues, is critically different from prevent­ ing the loss of blood alcohol evidence as the result of the Cite as: 579 U. S. ____ (2016) 31 Opinion of the Court body’s metabolism of alcohol, a natural process over which the arrestee has little control. Reply Brief in No. 14–1470, at 5–6. The distinction that Bernard draws between an ar­ restee’s active destruction of evidence and the loss of evidence due to a natural process makes little sense. In both situations the State is justifiably concerned that evidence may be lost, and Bernard does not explain why the cause of the loss should be dispositive. And in fact many of this Court’s post-Chimel cases have recognized the State’s concern, not just in avoiding an arrestee’s intentional destruction of evidence, but in “evidence preservation” or avoiding “the loss of evidence” more gen­ erally. Riley, 573 U. S., at ___ (slip op., at 8); see also Robinson, 414 U.S., at 234 (“the need to preserve evidence on his person”); Knowles v. Iowa, 525 U.S. 113, 118–119 (1998) (“the need to discover and preserve evidence;” “the concern for destruction or loss of evidence” (emphasis added)); Virginia v. Moore, 553 U.S. 164, 176 (2008) (the need to “safeguard evidence”). This concern for preserving evidence or preventing its loss readily encompasses the inevitable metabolization of alcohol in the blood. Nor is there any reason to suspect that Chimel’s use of the word “destruction,” 395 U.S., at 763, was a deliberate decision to rule out evidence loss that is mostly beyond the arrestee’s control. The case did not involve any evidence that was subject to dissipation through natural processes, and there is no sign in the opinion that such a situation was on the Court’s mind. Bernard attempts to derive more concrete support for his position from Schmerber. In that case, the Court stated that the “destruction of evidence under the direct control of the accused” is a danger that is not present “with respect to searches involving intrusions beyond the body’s surface.” 384 U.S., at 769. Bernard reads this to mean that an arrestee cannot be required “to take a chem­ 32 BIRCHFIELD v. NORTH DAKOTA Opinion of the Court ical test” incident to arrest, Brief for Petitioner in No. 14– 1470, at 19, but by using the term “chemical test,” Ber­ nard obscures the fact that Schmerber’s passage was addressed to the type of test at issue in that case, namely a blood test. The Court described blood tests as “searches involving intrusions beyond the body’s surface,” and it saw these searches as implicating important “interests in human dignity and privacy,” 384 U.S., at 769–770. Al- though the Court appreciated as well that blood tests “in­ volv[e] virtually no risk, trauma, or pain,” id., at 771, its point was that such searches still impinge on far more sensitive interests than the typical search of the person of an arrestee. Cf. supra, at 22–23. But breath tests, unlike blood tests, “are not invasive of the body,” Skinner, 489 U.S., at 626 (emphasis added), and therefore the Court’s comments in Schmerber are inapposite when it comes to the type of test Bernard was asked to take. Schmerber did not involve a breath test, and on the question of breath tests’ legality, Schmerber said nothing. Finally, Bernard supports his distinction using a pas­ sage from the McNeely opinion, which distinguishes be­ tween “easily disposable evidence” over “which the suspect has control” and evidence, like blood alcohol evidence, that is lost through a natural process “in a gradual and rela­ tively predictable manner.” 569 U. S., at ___ (slip op., at 10); see Reply Brief in No. 14–1470, at 5–6. Bernard fails to note the issue that this paragraph addressed. McNeely concerned only one exception to the usual warrant re­ quirement, the exception for exigent circumstances, and as previously discussed, that exception has always been understood to involve an evaluation of the particular facts of each case. Here, by contrast, we are concerned with the search-incident-to-arrest exception, and as we made clear in Robinson and repeated in McNeely itself, this authority is categorical. It does not depend on an evaluation of the threat to officer safety or the threat of evidence loss in a Cite as: 579 U. S. ____ (2016) 33 Opinion of the Court particular case.7 Having assessed the effect of BAC tests on privacy interests and the need for such tests, we conclude that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. The impact of breath tests on privacy is slight, and the need for BAC testing is great. We reach a different conclusion with respect to blood tests. Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availa­ bility of the less invasive alternative of a breath test. Respondents have offered no satisfactory justification for demanding the more intrusive alternative without a warrant. Neither respondents nor their amici dispute the effec­ —————— 7 JUSTICE SOTOMAYOR objects to treating warrantless breath tests as searches incident to a lawful arrest on two additional grounds. First, she maintains that “[a]ll of this Court’s postarrest exceptions to the warrant requirement require a law enforcement interest separate from criminal investigation.” Post, at 14. At least with respect to the search-incident-to-arrest doctrine, that is not true. As the historical authorities discussed earlier attest, see Part V–A, supra, the doctrine has always been understood as serving investigative ends, such as “discover[ing] and seiz[ing] . . . evidences of crime.” Weeks v. United States, 232 U.S. 383, 392 (1914); see also United States v. Robinson, 414 U.S. 218, 235 (1973) (emphasizing “the need . . . to discover evi­ dence”). Using breath tests to obtain evidence of intoxication is there­ fore well within the historical understanding of the doctrine’s purposes. Second, JUSTICE SOTOMAYOR contends that the search-incident-to­ arrest doctrine does not apply when “a narrower exception to the warrant requirement adequately satisfies the governmental needs asserted.” Post, at 7, n. 3; see also post, at 17–19. But while this Court’s cases have certainly recognized that “more targeted” exceptions to the warrant requirement may justify a warrantless search even when the search-incident-to-arrest exception would not, Riley v. Cali- fornia, 573 U. S. ___, ___ (2014) (slip op., at 14), JUSTICE SOTOMAYOR cites no authority for the proposition that an exception to the warrant requirement cannot apply simply because a “narrower” exception might apply. 34 BIRCHFIELD v. NORTH DAKOTA Opinion of the Court tiveness of breath tests in measuring BAC. Breath tests have been in common use for many years. Their results are admissible in court and are widely credited by juries, and respondents do not dispute their accuracy or utility. What, then, is the justification for warrantless blood tests? One advantage of blood tests is their ability to detect not just alcohol but also other substances that can impair a driver’s ability to operate a car safely. See Brief for New Jersey et al. as Amici Curiae 9; Brief for United States as Amicus Curiae 6. A breath test cannot do this, but police have other measures at their disposal when they have reason to believe that a motorist may be under the influ­ ence of some other substance (for example, if a breath test indicates that a clearly impaired motorist has little if any alcohol in his blood). Nothing prevents the police from seeking a warrant for a blood test when there is sufficient time to do so in the particular circumstances or from relying on the exigent circumstances exception to the warrant requirement when there is not. See McNeely, 569 U. S., at ___–___ (slip op., at 22–23). A blood test also requires less driver participation than a breath test. In order for a technician to take a blood sample, all that is needed is for the subject to remain still, either voluntarily or by being immobilized. Thus, it is possible to extract a blood sample from a subject who forcibly resists, but many States reasonably prefer not to take this step. See, e.g., Neville, 459 U.S., at 559–560. North Dakota, for example, tells us that it generally op­ poses this practice because of the risk of dangerous alter­ cations between police officers and arrestees in rural areas where the arresting officer may not have backup. Brief for Respondent in No. 14–1468, p. 29. Under current North Dakota law, only in cases involving an accident that re­ sults in death or serious injury may blood be taken from arrestees who resist. Compare N. D. Cent. Code Ann. §§39–20–04(1), 39–20–01, with §39–20–01.1. Cite as: 579 U. S. ____ (2016) 35 Opinion of the Court It is true that a blood test, unlike a breath test, may be administered to a person who is unconscious (perhaps as a result of a crash) or who is unable to do what is needed to take a breath test due to profound intoxication or injuries. But we have no reason to believe that such situations are common in drunk-driving arrests, and when they arise, the police may apply for a warrant if need be. A breath test may also be ineffective if an arrestee deliberately attempts to prevent an accurate reading by failing to blow into the tube for the requisite length of time or with the necessary force. But courts have held that such conduct qualifies as a refusal to undergo testing, e.g., Andrews v. Turner, 52 Ohio St. 2d 31, 36–37, 368 N.E.2d 1253, 1256–1257 (1977); In re Kunneman, 501 P.2d 910, 910–911 (Okla. Civ. App. 1972); see generally 1 Erwin §4.08[2] (collecting cases), and it may be prosecuted as such. And again, a warrant for a blood test may be sought. Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law en­ forcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. As in all cases involv­ ing reasonable searches incident to arrest, a warrant is not needed in this situation.8 —————— 8 JUSTICE THOMAS partly dissents from this holding, calling any dis­ tinction between breath and blood tests “an arbitrary line in the sand.” Post, at 3 (opinion concurring in judgment in part and dissenting in part). Adhering to a position that the Court rejected in McNeely, JUSTICE THOMAS would hold that both breath and blood tests are constitutional with or without a warrant because of the natural metab­ olization of alcohol in the bloodstream. Post, at 3–5. Yet JUSTICE THOMAS does not dispute our conclusions that blood draws are more invasive than breath tests, that breath tests generally serve state interests in combating drunk driving as effectively as blood tests, and that our decision in Riley calls for a balancing of individual privacy interests and legitimate state interests to determine the reasonableness 36 BIRCHFIELD v. NORTH DAKOTA Opinion of the Court VI Having concluded that the search incident to arrest doctrine does not justify the warrantless taking of a blood sample, we must address respondents’ alternative argu­ ment that such tests are justified based on the driver’s legally implied consent to submit to them. It is well estab­ lished that a search is reasonable when the subject con­ sents, e.g., Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973), and that sometimes consent to a search need not be express but may be fairly inferred from context, cf. Florida v. Jardines, 569 U.S. 1, ___–___ (2013) (slip op., at 6–7); Marshall v. Barlow’s, Inc., 436 U.S. 307, 313 (1978). Our prior opinions have referred approvingly to the gen­ eral concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply. See, e.g., McNeely, supra, at ___ (plural- ity opinion) (slip op., at 18); Neville, supra, at 560. Peti­ tioners do not question the constitutionality of those laws, and nothing we say here should be read to cast doubt on them. It is another matter, however, for a State not only to insist upon an intrusive blood test, but also to impose criminal penalties on the refusal to submit to such a test. There must be a limit to the consequences to which motor­ ists may be deemed to have consented by virtue of a deci­ sion to drive on public roads. Respondents and their amici all but concede this point. North Dakota emphasizes that its law makes refusal a misdemeanor and suggests that laws punishing refusal —————— of the category of warrantless search that is at issue. Contrary to JUSTICE THOMAS’s contention, this balancing does not leave law en­ forcement officers or lower courts with unpredictable rules, because it is categorical and not “case-by-case,” post, at 3. Indeed, today’s decision provides very clear guidance that the Fourth Amendment allows warrantless breath tests, but as a general rule does not allow warrant- less blood draws, incident to a lawful drunk-driving arrest. Cite as: 579 U. S. ____ (2016) 37 Opinion of the Court more severely would present a different issue. Brief for Respondent in No. 14–1468, at 33–34. Borrowing from our Fifth Amendment jurisprudence, the United States sug­ gests that motorists could be deemed to have consented to only those conditions that are “reasonable” in that they have a “nexus” to the privilege of driving and entail penal­ ties that are proportional to severity of the violation. Brief for United States as Amicus Curiae 21–27. But in the Fourth Amendment setting, this standard does not differ in substance from the one that we apply, since rea­ sonableness is always the touchstone of Fourth Amend­ ment analysis, see Brigham City v. Stuart, 547 U.S. 398, 403 (2006). And applying this standard, we conclude that motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense. VII Our remaining task is to apply our legal conclusions to the three cases before us. Petitioner Birchfield was criminally prosecuted for refusing a warrantless blood draw, and therefore the search he refused cannot be justified as a search incident to his arrest or on the basis of implied consent. There is no indication in the record or briefing that a breath test would have failed to satisfy the State’s interests in acquir­ ing evidence to enforce its drunk-driving laws against Birchfield. And North Dakota has not presented any case- specific information to suggest that the exigent circum­ stances exception would have justified a warrantless search. Cf. McNeely, 569 U. S., at ___–___ (slip op., at 20– 23). Unable to see any other basis on which to justify a warrantless test of Birchfield’s blood, we conclude that Birchfield was threatened with an unlawful search and that the judgment affirming his conviction must be reversed. Bernard, on the other hand, was criminally prosecuted 38 BIRCHFIELD v. NORTH DAKOTA Opinion of the Court for refusing a warrantless breath test. That test was a permissible search incident to Bernard’s arrest for drunk driving, an arrest whose legality Bernard has not con- tested. Accordingly, the Fourth Amendment did not re­ quire officers to obtain a warrant prior to demanding the test, and Bernard had no right to refuse it. Unlike the other petitioners, Beylund was not prose- cuted for refusing a test. He submitted to a blood test after police told him that the law required his submission, and his license was then suspended and he was fined in an administrative proceeding. The North Dakota Supreme Court held that Beylund’s consent was voluntary on the erroneous assumption that the State could permissibly compel both blood and breath tests. Because voluntari­ ness of consent to a search must be “determined from the totality of all the circumstances,” Schneckloth, supra, at 227, we leave it to the state court on remand to reevaluate Beylund’s consent given the partial inaccuracy of the officer’s advisory.9 We accordingly reverse the judgment of the North Da­ kota Supreme Court in No. 14–1468 and remand the case for further proceedings not inconsistent with this opinion. We affirm the judgment of the Minnesota Supreme Court in No. 14–1470. And we vacate the judgment of the North Dakota Supreme Court in No. 14–1507 and remand the case for further proceedings not inconsistent with this opinion. It is so ordered. —————— 9 If the court on remand finds that Beylund did not voluntarily con­ sent, it will have to address whether the evidence obtained in the search must be suppressed when the search was carried out pursuant to a state statute, see Heien v. North Carolina, 574 U. S. ___, ___–___ (2014) (slip op., at 8–10), and the evidence is offered in an administra­ tive rather than criminal proceeding, see Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 363–364 (1998). And as Beylund notes, remedies may be available to him under state law. See Brief for Petitioner in No. 14–1507, pp. 13–14. Cite as: 579 U. S. ____ (2016) 1 Opinion of SOTOMAYOR, J. SUPREME COURT OF THE UNITED STATES _________________ Nos. 14–1468, 14–1470, and 14–1507 _________________ DANNY BIRCHFIELD, PETITIONER 14–1468 v. NORTH DAKOTA; ON WRIT OF CERTIORARI TO THE SUPREME COURT OF NORTH DAKOTA WILLIAM ROBERT BERNARD, JR., PETITIONER 14–1470 v. MINNESOTA; AND ON WRIT OF CERTIORARI TO THE SUPREME COURT OF MINNESOTA STEVE MICHAEL BEYLUND, PETITIONER 14–1507 v. GRANT LEVI, DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION ON WRIT OF CERTIORARI TO THE SUPREME COURT OF NORTH DAKOTA [June 23, 2016] JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG joins, concurring in part and dissenting in part. The Court today considers three consolidated cases. I join the majority’s disposition of Birchfield v. North Da- kota, No. 14–1468, and Beylund v. Levi, No. 14–1507, in which the Court holds that the search-incident-to-arrest exception to the Fourth Amendment’s warrant require- ment does not permit warrantless blood tests. But I dis- 2 BIRCHFIELD v. NORTH DAKOTA Opinion of SOTOMAYOR, J. sent from the Court’s disposition of Bernard v. Minnesota, No. 14–1470, in which the Court holds that the same exception permits warrantless breath tests. Because no governmental interest categorically makes it impractical for an officer to obtain a warrant before measuring a driver’s alcohol level, the Fourth Amendment prohibits such searches without a warrant, unless exigent circum- stances exist in a particular case.1 I A As the Court recognizes, the proper disposition of this case turns on whether the Fourth Amendment guarantees a right not to be subjected to a warrantless breath test after being arrested. The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, sup- ported by Oath or affirmation, and particularly de- scribing the place to be searched, and the persons or things to be seized.” The “ultimate touchstone of the Fourth Amendment is ‘reasonableness.’ ” Brigham City v. Stuart, 547 U.S. 398, 403 (2006). A citizen’s Fourth Amendment right to be free from “unreasonable searches” does not disappear upon arrest. Police officers may want to conduct a range of searches after placing a person under arrest. They may want to pat the arrestee down, search her pockets and purse, peek inside her wallet, scroll through her cellphone, examine her car or dwelling, swab her cheeks, or take —————— 1 Because I see no justification for warrantless blood or warrantless breath tests, I also dissent from the parts of the majority opinion that justify its conclusions with respect to blood tests on the availability of warrantless breath tests. See ante, at 33-34. Cite as: 579 U. S. ____ (2016) 3 Opinion of SOTOMAYOR, J. blood and breath samples to determine her level of intoxi- cation. But an officer is not authorized to conduct all of these searches simply because he has arrested someone. Each search must be separately analyzed to determine its reasonableness. Both before and after a person has been arrested, war- rants are the usual safeguard against unreasonable searches because they guarantee that the search is not a “random or arbitrary ac[t] of government agents,” but is instead “narrowly limited in its objectives and scope.” Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 622 (1989). Warrants provide the “detached scrutiny of a neutral magistrate, and thus ensur[e] an objective deter- mination whether an intrusion is justified.” Ibid. And they give life to our instruction that the Fourth Amend- ment “is designed to prevent, not simply to redress, unlaw- ful police action.” Steagald v. United States, 451 U.S. 204, 215 (1981) (internal quotation marks omitted). Because securing a warrant before a search is the rule of reasonableness, the warrant requirement is “subject only to a few specifically established and well-delineated excep- tions.” Katz v. United States, 389 U.S. 347, 357 (1967). To determine whether to “exempt a given type of search from the warrant requirement,” this Court traditionally “assess[es], on the one hand, the degree to which it in- trudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legiti- mate governmental interests.” Riley v. California, 573 U. S. ___, ___ (2014) (slip op., at 9) (internal quotation marks omitted). In weighing “whether the public interest demands creation of a general exception to the Fourth Amendment’s warrant requirement, the question is not whether the public interest justifies the type of search in question,” but, more specifically, “whether the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search.” Camara v. Municipal Court 4 BIRCHFIELD v. NORTH DAKOTA Opinion of SOTOMAYOR, J. of City and County of San Francisco, 387 U.S. 523, 533 (1967); see also Almeida-Sanchez v. United States, 413 U.S. 266, 282–283 (1973) (Powell, J., concurring) (noting that in areas ranging from building inspections to auto- mobile searches, the Court’s “general approach to excep- tions to the warrant requirement” is to determine whether a “ ‘warrant system can be constructed that would be feasible and meaningful’ ”); United States v. United States Dist. Court for Eastern Dist. of Mich., 407 U.S. 297, 315 (1972) (“We must . . . ask whether a warrant requirement would unduly frustrate the [governmental interest]”).2 Applying these principles in past cases, this Court has recognized two kinds of exceptions to the warrant re- quirement that are implicated here: (1) case-by-case ex- ceptions, where the particularities of an individual case justify a warrantless search in that instance, but not others; and (2) categorical exceptions, where the common- alities among a class of cases justify dispensing with the warrant requirement for all of those cases, regardless of their individual circumstances. Relevant here, the Court allows warrantless searches on a case-by-case basis where the “exigencies” of the particu- lar case “make the needs of law enforcement so compelling that a warrantless search is objectively reasonable” in that —————— 2 The Court is wrong to suggest that because the States are seeking an extension of the “existing” search-incident-to-arrest exception rather than the “creation” of a new exception for breath searches, this Court need not determine whether the governmental interest in these searches can be accomplished without excusing the warrant requirement. Ante, at 26. To the contrary, as the very sentence the Court cites il- lustrates, the question is always whether the particular “type of search in question” is reasonable if conducted without a warrant. Camara, 387 U.S., at 533. To answer that question, in every case, courts must ask whether the “burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search.” Ibid. This question may be answered based on existing doctrine, or it may require the creation of new doctrine, but it must always be asked. Cite as: 579 U. S. ____ (2016) 5 Opinion of SOTOMAYOR, J. instance. Missouri v. McNeely, 569 U. S. ___, ___ (2013) (slip op., at 5) (quoting Kentucky v. King, 563 U.S. 452, 460 (2011)). The defining feature of the exigent circum- stances exception is that the need for the search becomes clear only after “all of the facts and circumstances of the particular case” have been considered in light of the “total- ity of the circumstances.” 569 U. S., at ___ (slip op., at 8). Exigencies can include officers’ “need to provide emer- gency assistance to an occupant of a home, engage in ‘hot pursuit’ of a fleeing suspect, or enter a burning building to put out a fire and investigate its cause.” Id., at ___ (slip op., at 5) (citations omitted). Exigencies can also arise in efforts to measure a driver’s blood alcohol level. In Schmerber v. California, 384 U.S. 757 (1966), for instance, a man sustained injuries in a car accident and was transported to the hospital. While there, a police officer arrested him for drunk driving and ordered a warrantless blood test to measure his blood alcohol content. This Court noted that although the warrant requirement generally applies to postarrest blood tests, a warrantless search was justified in that case because several hours had passed while the police investigated the scene of the crime and Schmerber was taken to the hospi- tal, precluding a timely securing of a warrant. Id., at 770– 771. This Court also recognizes some forms of searches in which the governmental interest will “categorically” out- weigh the person’s privacy interest in virtually any cir- cumstance in which the search is conducted. Relevant here is the search-incident-to-arrest exception. That exception allows officers to conduct a limited postarrest search without a warrant to combat risks that could arise in any arrest situation before a warrant could be obtained: “ ‘to remove any weapons that the [arrestee] might seek to use in order to resist arrest or effect his escape’ ” and to “ ‘seize any evidence on the arrestee’s person in order to 6 BIRCHFIELD v. NORTH DAKOTA Opinion of SOTOMAYOR, J. prevent its concealment or destruction.’ ” Riley, 573 U. S., at ___ (slip op., at 6) (quoting Chimel v. California, 395 U.S. 752, 763 (1969)). That rule applies “categorical[ly]” to all arrests because the need for the warrantless search arises from the very “fact of the lawful arrest,” not from the reason for arrest or the circumstances surrounding it. United States v. Robinson, 414 U.S. 218, 225, 235 (1973). Given these different kinds of exceptions to the warrant requirement, if some form of exception is necessary for a particular kind of postarrest search, the next step is to ask whether the governmental need to conduct a warrantless search arises from “threats” that “ ‘lurk in all custodial arrests’ ” and therefore “justif[ies] dispensing with the warrant requirement across the board,” or, instead, whether the threats “may be implicated in a particular way in a particular case” and are therefore “better ad- dressed through consideration of case-specific exceptions to the warrant requirement, such as the one for exigent circumstances.” Riley, 573 U. S., at ___ (slip op., at 11–12) (alterations and internal quotation marks omitted). To condense these doctrinal considerations into a straightforward rule, the question is whether, in light of the individual’s privacy, a “legitimate governmental inter- est” justifies warrantless searches—and, if so, whether that governmental interest is adequately addressed by a case-by-case exception or requires by its nature a categori- cal exception to the warrant requirement. B This Court has twice applied this framework in recent terms. Riley v. California, 573 U. S. ___,addressed whether, after placing a person under arrest, a police officer may conduct a warrantless search of his cell phone data. Cali- fornia asked for a categorical rule, but the Court rejected that request, concluding that cell phones do not present the generic arrest-related harms that have long justified Cite as: 579 U. S. ____ (2016) 7 Opinion of SOTOMAYOR, J. the search-incident-to-arrest exception. The Court found that phone data posed neither a danger to officer safety nor a risk of evidence destruction once the physical phone was secured. Id., at ___–___ (slip op., at 10–15). The Court nevertheless acknowledged that the exigent circum- stances exception might be available in a “now or never situation.” Id., at ___ (slip op., at 15) (internal quotation marks omitted). It emphasized that “[i]n light of the availability of the exigent circumstances exception, there is no reason to believe that law enforcement officers will not be able to address” the rare needs that would require an on-the-spot search. Id., at ___ (slip op., at 26). Similarly, Missouri v. McNeely, 569 U. S. ___,applied this doctrinal analysis to a case involving police efforts to measure drivers’ blood alcohol levels. In that case, Mis- souri argued that the natural dissipation of alcohol in a person’s blood justified a per se exigent circumstances exception to the warrant requirement—in essence, a new kind of categorical exception. The Court recognized that exigencies could exist, like in Schmerber, that would jus- tify warrantless searches. 569 U. S., at ___ (slip op., at 9). But it also noted that in many drunk driving situations, no such exigencies exist. Where, for instance, “the war- rant process will not significantly increase the delay” in testing “because an officer can take steps to secure a war- rant” while the subject is being prepared for the test, there is “no plausible justification for an exception to the war- rant requirement.” Id., at ___ (slip op., at 10). The Court thus found it unnecessary to “depart from careful case-by- case assessment of exigency and adopt the categorical rule proposed by the State.” Id., at ___ (slip op., at 9).3 —————— 3 The Court quibbles with our unremarkable statement that the cate- gorical search-incident-to-arrest doctrine and the case-by-case exigent circumstances doctrine are part of the same framework by arguing that a footnote in McNeely was “careful to note that the decision did not address any other exceptions to the warrant requirement.” Ante, at 26- 8 BIRCHFIELD v. NORTH DAKOTA Opinion of SOTOMAYOR, J. II The States do not challenge McNeely’s holding that a categorical exigency exception is not necessary to accom- modate the governmental interests associated with the dissipation of blood alcohol after drunk-driving arrests. They instead seek to exempt breath tests from the war- rant requirement categorically under the search-incident- to-arrest doctrine. The majority agrees. Both are wrong. As discussed above, regardless of the exception a State requests, the Court’s traditional framework asks whether, in light of the privacy interest at stake, a legitimate gov- —————— 27 (citing McNeely, 569 U. S., at ___, n. 3 (slip op., at 7, n. 3)). That footnote explains the difference between categorical exceptions and case-by-case exceptions generally. Id., at ___, n. 3. It does nothing to suggest that the two forms of exceptions should not be considered together when analyzing whether it is reasonable to exempt categori- cally a particular form of search from the Fourth Amendment’s warrant requirement. It should go without saying that any analysis of whether to apply a Fourth Amendment warrant exception must necessarily be compara- tive. If a narrower exception to the warrant requirement adequately satisfies the governmental needs asserted, a more sweeping exception will be overbroad and could lead to unnecessary and “unreasonable searches” under the Fourth Amendment. Contrary to the Court’s suggestion that “no authority” supports this proposition, see ante, at 33 n. 8, our cases have often deployed this commonsense comparative check. See Riley v. California, 573 U. S. ___, ___–___ (2014) (slip op., at 14–15) (rejecting the application of the search-incident-to-arrest excep- tion because the exigency exception is a “more targeted wa[y] to ad- dress [the government’s] concerns”); id., at ___ (slip op., at 11) (analyz- ing whether the governmental interest can be “better addressed through consideration of case-specific exceptions to the warrant re- quirement”); id., at __ (slip op., at 26–27) (noting that “[i]n light of the availability of the exigent circumstances exception, there is no reason to believe that” the governmental interest cannot be satisfied without a categorical search-incident-to-arrest exception); McNeely, 569 U. S., at ___ (slip op., at 9–10) (holding that the availability of the exigency exception for circumstances that “make obtaining a warrant impracti- cal” is “reason . . . not to accept the ‘considerable overgeneralization’ that a per se rule would reflect”). Cite as: 579 U. S. ____ (2016) 9 Opinion of SOTOMAYOR, J. ernmental interest ever requires conducting breath searches without a warrant—and, if so, whether that governmental interest is adequately addressed by a case- by-case exception or requires a categorical exception to the warrant requirement. That framework directs the conclu- sion that a categorical search-incident-to-arrest rule for breath tests is unnecessary to address the States’ govern- mental interests in combating drunk driving. A Beginning with the governmental interests, there can be no dispute that States must have tools to combat drunk driving. See ante, at 2–8. But neither the States nor the Court has demonstrated that “obtaining a warrant” in cases not already covered by the exigent circumstances exception “is likely to frustrate the governmental pur- pose[s] behind [this] search.” Camara, 387 U.S., at 533.4 First, the Court cites the governmental interest in pro- tecting the public from drunk drivers. See ante, at 24. But it is critical to note that once a person is stopped for drunk driving and arrested, he no longer poses an imme- diate threat to the public. Because the person is already in custody prior to the administration of the breath test, there can be no serious claim that the time it takes to obtain a warrant would increase the danger that drunk driver poses to fellow citizens. Second, the Court cites the governmental interest in preventing the destruction or loss of evidence. See ante, at 30-31. But neither the Court nor the States identify any practical reasons why obtaining a warrant after making an arrest and before conducting a breath test compromises the quality of the evidence obtained. To the contrary, the delays inherent in administering reliable breath tests —————— 4 Although Bernard’s case arises in Minnesota, North Dakota’s simi- lar breath test laws are before this Court. I therefore consider both States together. 10 BIRCHFIELD v. NORTH DAKOTA Opinion of SOTOMAYOR, J. generally provide ample time to obtain a warrant. There is a common misconception that breath tests are conducted roadside, immediately after a driver is arrested. While some preliminary testing is conducted roadside, reliability concerns with roadside tests confine their use in most circumstances to establishing probable cause for an arrest. See 2 R. Erwin, Defense of Drunk Driving Cases §18.08 (3d ed. 2015) (“Screening devices are . . . used when it is impractical to utilize an evidential breath tester (EBT) (e.g. at roadside or at various work sites)”). The standard evidentiary breath test is conducted after a motorist is arrested and transported to a police station, governmental building, or mobile testing facility where officers can access reliable, evidence-grade breath testing machinery. Brief for Respondent in No. 14–1618, p. 8, n. 2; National Highway Transportation Safety Admin. (NHTSA), A. Berning et al., Refusal of Intoxication Test- ing: A Report to Congress 4, and n. 5 (No. 811098, Sept. 2008). Transporting the motorist to the equipment site is not the only potential delay in the process, however. Officers must also observe the subject for 15 to 20 minutes to ensure that “residual mouth alcohol,” which can inflate results and expose the test to an evidentiary challenge at trial, has dissipated and that the subject has not inserted any food or drink into his mouth.5 In many States, includ- ing Minnesota, officers must then give the motorist a window of time within which to contact an attorney before administering a test.6 Finally, if a breath test machine is —————— 5 See NHTSA and International Assn. of Chiefs of Police, DWI Detec- tion and Standardized Field Sobriety Testing Participant Guide, Session 7, p. 20 (2013). 6 See Minn. Stat. §169A.51, subd. 2(4) (2014) (“[T]he person has the right to consult with an attorney, but . . . this right is limited to the extent that it cannot unreasonably delay administration of the test”); see also Kuhn v. Commissioner of Public Safety, 488 N.W.2d 838 (Minn. App. 1992) (finding 24 minutes insufficient time to contact an Cite as: 579 U. S. ____ (2016) 11 Opinion of SOTOMAYOR, J. not already active, the police officer must set it up. North Dakota’s Intoxilyzer 8000 machine can take as long as 30 minutes to “warm-up.”7 Because of these necessary steps, the standard breath test is conducted well after an arrest is effectuated. The Minnesota Court of Appeals has explained that nearly all breath tests “involve a time lag of 45 minutes to two hours.” State v. Larson, 429 N.W.2d 674, 676 (Minn. App. 1988); see also State v. Chirpich, 392 N.W.2d 34, 37 (Minn. App. 1986). Both North Dakota and Minnesota give police a 2-hour period from the time the motorist was pulled over within which to administer a breath test. N. D. Cent. Code Ann. §39–20–04.1(1) (2008); Minn. Stat. §169A.20, subd. 1(5) (2014).8 During this built-in window, police can seek warrants. That is particularly true in light of “advances” in technol- ogy that now permit “the more expeditious processing of warrant applications.” McNeely, 569 U. S., at ___–___, and n. 4 (slip op., at 11–12, and n. 4) (describing increased availability of telephonic warrants); Riley, 573 U. S., at ___ (slip op., at 26) (describing jurisdictions that have adopted an e-mail warrant system that takes less than 15 minutes); Minn. Rules Crim. Proc. 33.05, 36.01–36.08 (2010 and Supp. 2013) (allowing telephonic warrants); N. D. Rules Crim. Proc. 41(c)(2)–(3) (2013) (same). Moreover, counsel for North Dakota explained at oral argument that —————— attorney before being required to submit to a test). 7 See Office of Attorney General, Crime Lab. Div., Chemical Test Training Student Manual, Fall 2011–Spring 2012, p. 13 (2011). 8 Many tests are conducted at the outer boundaries of that window. See, e.g., Israel v. Commissioner of Public Safety, 400 N.W.2d 428 (Minn. App. 1987) (57 minute poststop delay); Mosher v. Commissioner of Public Safety, 2015 WL 3649344 (Minn. App., June 15, 2015) (119 minute postarrest delay); Johnson v. Commissioner of Public Safety, 400 N.W.2d 195 (Minn. App. 1987) (96 minute postarrest delay); Scheiterlein v. Commissioner of Public Safety, 2014 WL 3021278 (Minn. App., July 7, 2014) (111 minute poststop delay). 12 BIRCHFIELD v. NORTH DAKOTA Opinion of SOTOMAYOR, J. the State uses a typical “on-call” system in which some judges are available even during off-duty times.9 See Tr. of Oral Arg. 42. Where “an officer can . . . secure a warrant while” the motorist is being transported and the test is being pre- pared, this Court has said that “there would be no plausi- ble justification for an exception to the warrant require- ment.” McNeely, 569 U. S., at ___ (slip op., at 10). Neither the Court nor the States provide any evidence to suggest that, in the normal course of affairs, obtaining a warrant and conducting a breath test will exceed the allotted 2- hour window. Third, the Court and the States cite a governmental interest in minimizing the costs of gathering evidence of drunk driving. But neither has demonstrated that requir- ing police to obtain warrants for breath tests would impose a sufficiently significant burden on state resources to justify the elimination of the Fourth Amendment’s war- rant requirement. The Court notes that North Dakota has 82 judges and magistrate judges who are authorized to issue warrants. See ante, at 27-28. Because North Da- kota has roughly 7,000 drunk-driving arrests annually, the Court concludes that if police were required to obtain warrants “for every search incident to arrest that does not involve exigent circumstances, the courts would be swamped.” Ante, at 27. That conclusion relies on inflated numbers and unsupported inferences. Assuming that North Dakota police officers do not ob- —————— 9 Counsel for North Dakota represented at oral argument that in “larger jurisdictions” it “takes about a half an hour” to obtain a war- rant. Tr. of Oral Arg. 42. Counsel said that it is sometimes “harder to get somebody on the phone” in rural jurisdictions, but even if it took twice as long, the process of obtaining a warrant would be unlikely to take longer than the inherent delays in preparing a motorist for testing and would be particularly unlikely to reach beyond the 2-hour window within which officers can conduct the test. Cite as: 579 U. S. ____ (2016) 13 Opinion of SOTOMAYOR, J. tain warrants for any drunk-driving arrests today, and assuming that they would need to obtain a warrant for every drunk-driving arrest tomorrow, each of the State’s 82 judges and magistrate judges would need to issue fewer than two extra warrants per week.10 Minnesota has nearly the same ratio of judges to drunk-driving arrests, and so would face roughly the same burden.11 These back-of-the- envelope numbers suggest that the burden of obtaining a warrant before conducting a breath test would be small in both States. But even these numbers overstate the burden by a sig- nificant degree. States only need to obtain warrants for drivers who refuse testing and a significant majority of drivers voluntarily consent to breath tests, even in States without criminal penalties for refusal. In North Dakota, only 21% of people refuse breath tests and in Minnesota, only 12% refuse. NHTSA, E. Namuswe, H. Coleman, & A. Berning, Breath Test Refusal Rates in the United States– 2011 Update 2 (No. 811881 2014). Including States that impose only civil penalties for refusal, the average refusal rate is slightly higher at 24%. Id., at 3. Say that North Dakota’s and Minnesota’s refusal rates rise to double the mean, or 48%. Each of their judges and magistrate judges would need to issue fewer than one extra warrant a —————— 10 Seven thousand annual arrests divided by 82 judges and magis- trate judges is 85.4 extra warrants per judge and magistrate judge per year. And 85.4 divided by 52 weeks is 1.64 extra warrants per judge and magistrate judge per week. 11 Minnesota has about 25,000 drunk-driving incidents each year. Minn. Dept. of Public Safety, Office of Traffic Safety, Minn. Impaired Driving Facts 2014, p. 2 (2015). In Minnesota, all judges not exercising probate jurisdiction can issue warrants. Minn. Stat. §626.06 (2009). But the state district court judges appear to do the lion’s share of that work. So, conservatively counting only those judges, the State has 280 judges that can issue warrants. Minnesota Judicial Branch, Report to the Community 23 (2015). Similar to North Dakota, that amounts to 1.72 extra warrants per judge per week. 14 BIRCHFIELD v. NORTH DAKOTA Opinion of SOTOMAYOR, J. week.12 That bears repeating: The Court finds a categori- cal exception to the warrant requirement because each of a State’s judges and magistrate judges would need to issue less than one extra warrant a week. Fourth, the Court alludes to the need to collect evidence conveniently. But mere convenience in investigating drunk driving cannot itself justify an exception to the warrant requirement. All of this Court’s postarrest excep- tions to the warrant requirement require a law enforce- ment interest separate from criminal investigation. The Court’s justification for the search incident to arrest rule is “the officer’s safety” and the prevention of evidence “concealment or destruction.” Chimel, 395 U.S., at 763. The Court’s justification for the booking exception, which allows police to obtain fingerprints and DNA without a warrant while booking an arrestee at the police station, is the administrative need for identification. See Maryland v. King, 569 U. S. ___, ___–___ (2013) (slip op., at 11–12). The Court’s justification for the inventory search excep- tion, which allows police to inventory the items in the arrestee’s personal possession and car, is the need to “protect an owner’s property while it is in the custody of the police, to insure against claims of lost, stolen, or van- dalized property, and to guard the police from danger.” Colorado v. Bertine, 479 U.S. 367, 372 (1987). This Court has never said that mere convenience in gathering evidence justifies an exception to the warrant requirement. See Florida v. Wells, 495 U.S. 1, 4 (1990) (suppressing evidence where supposed “inventory” search —————— 12 Because each of North Dakota’s judges and magistrate judges would have to issue an extra 1.64 warrants per week assuming a 100% refusal rate, see supra, at 13, nn. 10–11, they would have to issue an additional 0.79 per week assuming a 48% refusal rate. Adjusting for the same conservatively high refusal rate, Minnesota would go from 1.72 additional warrants per judge per week to just 0.82. Cite as: 579 U. S. ____ (2016) 15 Opinion of SOTOMAYOR, J. was done without standardized criteria, suggesting in- stead “ ‘a purposeful and general means of discovering evidence of crime’ ”). If the simple collection of evidence justifies an exception to the warrant requirement even where a warrant could be easily obtained, exceptions would become the rule. Ibid. Finally, as a general matter, the States have ample tools to force compliance with lawfully obtained warrants. This Court has never cast doubt on the States’ ability to impose criminal penalties for obstructing a search authorized by a lawfully obtained warrant. No resort to violent compli- ance would be necessary to compel a test. If a police of- ficer obtains a warrant to conduct a breath test, citizens can be subjected to serious penalties for obstruction of justice if they decline to cooperate with the test. This Court has already taken the weighty step of char- acterizing breath tests as “searches” for Fourth Amend- ment purposes. See Skinner, 489 U.S., at 616–617. That is because the typical breath test requires the subject to actively blow alveolar (or “deep lung”) air into the ma- chine. Ibid. Although the process of physically blowing into the machine can be completed in as little as a few minutes, the end-to-end process can be significantly longer. The person administering the test must calibrate the machine, collect at least two separate samples from the arrestee, change the mouthpiece and reset the machine between each, and conduct any additional testing indicated by disparities between the two tests.13 Although some searches are certainly more invasive than breath tests, this Court cannot do justice to their status as Fourth Amendment “searches” if exaggerated time pressures, mere convenience in collecting evidence, and the “burden” —————— 13 See Office of Attorney General, Crime Lab. Div., Approved Method To Conduct Breath Tests With the Intoxilyzer 8000 (BRS–001), pp. 4–6, 8 (2012). 16 BIRCHFIELD v. NORTH DAKOTA Opinion of SOTOMAYOR, J. of asking judges to issue an extra couple of warrants per month are costs so high as to render reasonable a search without a warrant.14 The Fourth Amendment becomes an empty promise of protecting citizens from unreasonable searches. B After evaluating the governmental and privacy interests at stake here, the final step is to determine whether any situations in which warrants would interfere with the States’ legitimate governmental interests should be ac- commodated through a case-by-case or categorical excep- tion to the warrant requirement. As shown, because there are so many circumstances in which obtaining a warrant will not delay the administra- tion of a breath test or otherwise compromise any govern- mental interest cited by the States, it should be clear that allowing a categorical exception to the warrant require- ment is a “considerable overgeneralization” here. McNeely, 569 U. S., at ___ (slip op., at 10). As this Court concluded in Riley and McNeely, any unusual issues that —————— 14 In weighing the governmental interests at stake here, the Court also downplays the “benefits” that warrants provide for breath tests. Because this Court has said unequivocally that warrants are the usual safeguard against unreasonable searches, see Katz v. United States, 389 U.S. 347, 357 (1967), the legal relevance of this discussion is not clear. In any event, the Court is wrong to conclude that warrants provide little benefit here. The Court says that any warrants for breath tests would be issued based on the “characterization” of the police officer, which a “magistrate would be in a poor position to challenge.” Ante, at 29. Virtually all warrants will rely to some degree on an officer’s own perception. The very purpose of warrants is to have a neutral arbiter determine whether inferences drawn from officers’ perceptions and circumstantial evidence are sufficient to justify a search. Regardless of the particulars, the Court’s mode of analysis is a dangerous road to venture down. Historically, our default has been that warrants are required. This part of the Court’s argument instead suggests, without precedent, that their value now has to be proven. Cite as: 579 U. S. ____ (2016) 17 Opinion of SOTOMAYOR, J. do arise can “better [be] addressed through considera- tion of case-specific exceptions to the warrant require- ment.” Riley, 573 U. S., at ___ (slip op., at 11); see also McNeely, 569 U. S., at ___ (slip op., at 15) (opinion of SOTOMAYOR, J.). Without even considering the comparative effectiveness of case-by-case and categorical exceptions, the Court reaches for the categorical search-incident-to-arrest excep- tion and enshrines it for all breath tests. The majority apparently assumes that any postarrest search should be analyzed under the search-incident-to-arrest doctrine. See ante, at 16 (“In the three cases now before us, the drivers were searched or told that they were required to submit to a search after being placed under arrest for drunk driving. We therefore consider how the search-incident-to-arrest doctrine applies to breath and blood tests incident to such arrests”). But, as we explained earlier, police officers may want to conduct a range of different searches after placing a per- son under arrest. Each of those searches must be sepa- rately analyzed for Fourth Amendment compliance. Two narrow types of postarrest searches are analyzed together under the rubric of our search-incident-to-arrest doctrine: Searches to disarm arrestees who could pose a danger before a warrant is obtained and searches to find evidence arrestees have an incentive to destroy before a warrant is obtained. Chimel, 395 U.S., at 763. Other forms of postarrest searches are analyzed differently because they present needs that require more tailored exceptions to the warrant requirement. See supra, at 4–5 (discussing postarrest application of the “exigency” exception); see also supra, at 13–14 (discussing postarrest booking and inven- tory exceptions). The fact that a person is under arrest does not tell us which of these warrant exceptions should apply to a par- ticular kind of postarrest search. The way to analyze 18 BIRCHFIELD v. NORTH DAKOTA Opinion of SOTOMAYOR, J. which exception, if any, is appropriate is to ask whether the exception best addresses the nature of the postarrest search and the needs it fulfills. Yet the majority never explains why the search-incident-to-arrest framework—its justifications, applications, and categorical scope—is best suited to breath tests. To the contrary, the search-incident-to-arrest exception is particularly ill suited to breath tests. To the extent the Court discusses any fit between breath tests and the rationales underlying the search-incident-to-arrest excep- tion, it says that evidence preservation is one of the core values served by the exception and worries that “evidence may be lost” if breath tests are not conducted. Ante, at 31. But, of course, the search-incident-to-arrest exception is concerned with evidence destruction only insofar as that destruction would occur before a warrant could be sought. And breath tests are not, except in rare circumstances, conducted at the time of arrest, before a warrant can be obtained, but at a separate location 40 to 120 minutes after an arrest is effectuated. That alone should be reason to reject an exception forged to address the immediate needs of arrests. The exception’s categorical reach makes it even less suitable here. The search-incident-to-arrest exception is applied categorically precisely because the needs it ad- dresses could arise in every arrest. Robinson, 414 U.S., at 236. But the government’s need to conduct a breath test is present only in arrests for drunk driving. And the asserted need to conduct a breath test without a warrant arises only when a warrant cannot be obtained during the signif- icant built-in delay between arrest and testing. The condi- tions that require warrantless breath searches, in short, are highly situational and defy the logical underpinnings of the search-incident-to-arrest exception and its categori- cal application. Cite as: 579 U. S. ____ (2016) 19 Opinion of SOTOMAYOR, J. * * * In Maryland v. King, this Court dispensed with the warrant requirement and allowed DNA searches following an arrest. But there, it at least attempted to justify the search using the booking exception’s interest in identifying arrestees. 569 U. S., at ___–___ (slip op., at 11–18); id., at ___–___ (slip op., at 4–6) (Scalia, J., dissenting). Here, the Court lacks even the pretense of attempting to situate breath searches within the narrow and weighty law en- forcement needs that have historically justified the limited use of warrantless searches. I fear that if the Court con- tinues down this road, the Fourth Amendment’s warrant requirement will become nothing more than a suggestion. Cite as: 579 U. S. ____ (2016) 1 THOMAS, J., concurring Opinionin ofpart and,dissenting THOMAS J. in part SUPREME COURT OF THE UNITED STATES _________________ Nos. 14–1468, 14–1470, and 14–1507 _________________ DANNY BIRCHFIELD, PETITIONER 14–1468 v. NORTH DAKOTA; ON WRIT OF CERTIORARI TO THE SUPREME COURT OF NORTH DAKOTA WILLIAM ROBERT BERNARD, JR., PETITIONER 14–1470 v. MINNESOTA; AND ON WRIT OF CERTIORARI TO THE SUPREME COURT OF MINNESOTA STEVE MICHAEL BEYLUND, PETITIONER 14–1507 v. GRANT LEVI, DIRECTOR, NORTH DAKOTA DEPARTMENT OF TRANSPORTATION ON WRIT OF CERTIORARI TO THE SUPREME COURT OF NORTH DAKOTA [June 23, 2016] JUSTICE THOMAS, concurring in judgment in part and dissenting in part. The compromise the Court reaches today is not a good one. By deciding that some (but not all) warrantless tests revealing the blood alcohol concentration (BAC) of an arrested driver are constitutional, the Court contorts the search-incident-to-arrest exception to the Fourth Amend- ment’s warrant requirement. The far simpler answer to 2 BIRCHFIELD v. NORTH DAKOTA THOMAS, J., concurring Opinionin ofpart and,dissenting THOMAS J. in part the question presented is the one rejected in Missouri v. McNeely, 569 U. S. ___ (2013). Here, the tests revealing the BAC of a driver suspected of driving drunk are consti- tutional under the exigent-circumstances exception to the warrant requirement. Id., at ___–___ (THOMAS, J., dis- senting) (slip op., at 3–4). I Today’s decision chips away at a well-established excep- tion to the warrant requirement. Until recently, we have admonished that “[a] police officer’s determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth Amendment does not require to be broken down in each instance into an analysis of each step in the search.” United States v. Robinson, 414 U.S. 218, 235 (1973). Under our precedents, a search incident to lawful arrest “require[d] no additional justification.” Ibid. Not until the recent decision in Riley v. California, 573 U. S. ___ (2014), did the Court begin to retreat from this cate- gorical approach because it feared that the search at issue, the “search of the information on a cell phone,” bore “little resemblance to the type of brief physical search” contem- plated by this Court’s past search-incident-to-arrest deci- sions. Id., at ___ (slip op., at 10). I joined Riley, however, because the Court resisted the temptation to permit searches of some kinds of cell-phone data and not others, id., at ___–___ (slip op., at 23–25), and instead asked more generally whether that entire “category of effects” was searchable without a warrant, id., at ___ (slip op., at 10). Today’s decision begins where Riley left off. The Court purports to apply Robinson but further departs from its categorical approach by holding that warrantless breath tests to prevent the destruction of BAC evidence are con- stitutional searches incident to arrest, but warrantless blood tests are not. Ante, at 35 (“Because breath tests are Cite as: 579 U. S. ____ (2016) 3 THOMAS, J., concurring Opinionin ofpart and,dissenting THOMAS J. in part significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be adminis- tered as a search incident to a lawful arrest for drunk driving”). That hairsplitting makes little sense. Either the search-incident-to-arrest exception permits bodily searches to prevent the destruction of BAC evidence, or it does not. The Court justifies its result—an arbitrary line in the sand between blood and breath tests—by balancing the invasiveness of the particular type of search against the government’s reasons for the search. Ante, at 20–36. Such case-by-case balancing is bad for the People, who “through ratification, have already weighed the policy tradeoffs that constitutional rights entail.” Luis v. United States, 578 U. S. ___, ___ (2016) (THOMAS, J., concurring in judgment) (slip op., at 10); see also Crawford v. Washing- ton, 541 U.S. 36, 67–68 (2004). It is also bad for law enforcement officers, who depend on predictable rules to do their job, as Members of this Court have exhorted in the past. See Arizona v. Gant, 556 U.S. 332, 359 (2009) (ALITO, J., dissenting); see also id., at 363 (faulting the Court for “leav[ing] the law relating to searches incident to arrest in a confused and unstable state”). Today’s application of the search-incident-to-arrest exception is bound to cause confusion in the lower courts. The Court’s choice to allow some (but not all) BAC searches is undeniably appealing, for it both reins in the perni- cious problem of drunk driving and also purports to pre- serve some Fourth Amendment protections. But that compromise has little support under this Court’s existing precedents. II The better (and far simpler) way to resolve these cases is by applying the per se rule that I proposed in McNeely. 4 BIRCHFIELD v. NORTH DAKOTA THOMAS, J., concurring Opinionin ofpart and,dissenting THOMAS J. in part Under that approach, both warrantless breath and blood tests are constitutional because “the natural metaboliza- tion of [BAC] creates an exigency once police have proba- ble cause to believe the driver is drunk. It naturally fol- lows that police may conduct a search in these circumstances.” 569 U. S., at ___–___ (dissenting opinion) (slip op., at 3–4). The Court in McNeely rejected that bright-line rule and instead adopted a totality-of-the-circumstances test exam- ining whether the facts of a particular case presented exigent circumstances justifying a warrantless search. Id., at ___ (slip op., at 1). The Court ruled that “the natu- ral dissipation of alcohol in the blood” could not “categori- cally” create an “exigency” in every case. Id., at ___ (slip op., at 13). The destruction of “BAC evidence from a drunk-driving suspect” that “naturally dissipates over time in a gradual and relatively predictable manner,” according to the Court, was qualitatively different from the destruction of evidence in “circumstances in which the suspect has control over easily disposable evidence.” Id., at ___ (slip op., at 10). Today’s decision rejects McNeely’s arbitrary distinction between the destruction of evidence generally and the destruction of BAC evidence. But only for searches inci- dent to arrest. Ante, at 31–33. The Court declares that such a distinction “between an arrestee’s active destruc- tion of evidence and the loss of evidence due to a natural process makes little sense.” Ante, at 31. I agree. See McNeely, supra, at ___–___ (THOMAS, J., dissenting) (slip op., at 5–6). But it also “makes little sense” for the Court to reject McNeely’s arbitrary distinction only for searches incident to arrest and not also for exigent-circumstances searches when both are justified by identical concerns about the destruction of the same evidence. McNeely’s distinction is no less arbitrary for searches justified by exigent circumstances than those justified by search inci- Cite as: 579 U. S. ____ (2016) 5 THOMAS, J., concurring Opinionin ofpart and,dissenting THOMAS J. in part dent to arrest. The Court was wrong in McNeely, and today’s compro- mise is perhaps an inevitable consequence of that error. Both searches contemplated by the state laws at issue in these cases would be constitutional under the exigent- circumstances exception to the warrant requirement. I respectfully concur in the judgment in part and dissent in part

Drunk drivers take a grisly toll on the Nation’s roads, claiming thousands of lives, injuring many more victims, and inflicting billions of dollars in property damage every 2 year. To fight this problem, all States have laws that prohibit motorists from driving with a blood alcohol con­ centration (BC) that exceeds a specified level. But de­ termining whether a driver’s BC is over the legal limit requires a test, and many drivers stopped on suspicion of drunk driving would not submit to testing if given the option. So every State also has long had what are termed “implied consent laws.” These laws impose penalties on motorists who refuse to undergo testing when there is sufficient reason to believe they are violating the State’s drunk-driving laws. In the past, the typical penalty for noncompliance was suspension or revocation of the motorist’s license. The cases now before us involve laws that go beyond that and make it a crime for a motorist to refuse to be tested after being lawfully arrested for driving while impaired. The question presented is whether such laws violate the Fourth mendment’s prohibition against unreasonable searches. I The problem of drunk driving arose almost as soon as motor vehicles came into use. See J. Jacobs, Drunk Driv­ ing: n merican Dilemma 57 (18) (Jacobs). New Jer­ sey enacted what was perhaps the Nation’s first drunk- driving law in 106, 106 N. J. Laws pp. 186, 16, and other States soon followed. These early laws made it illegal to drive while intoxicated but did not provide a statistical definition of intoxication. s a result, prosecu­ tors normally had to present testimony that the defendant was showing outward signs of intoxication, like imbalance or slurred speech. R. Donigan, Chemical Tests and the Law 2 (166) (Donigan). s one early case put it, “[t]he effects resulting from the drinking of intoxicating liquors are manifested in various ways, and before any one can be shown to be under the influence of intoxicating liquor it is Cite as: 57 U. S. (2016) 3 Opinion of the Court necessary for some witness to prove that some one or more of these effects were perceptible to him.” The 130’s saw a continued rise in the number of motor vehicles on the roads, an end to Prohibition, and not coin­ cidentally an increased interest in combating the growing problem of drunk driving. Jones, Measuring lcohol in Blood and Breath for Forensic Purposes— Historical Review, 8 For. Sci. Rev. 13, 20, 33 (16) (Jones). The merican Medical ssociation and the National Safety Council set up committees to study the problem and ulti­ mately concluded that a driver with a BC of 0.15% or higher could be presumed to be inebriated. Donigan 21 22. In 13, Indiana enacted the first law that defined presumptive intoxication based on BC levels, using the recommended 0.15% standard. 13 Ind. cts p. 30; Jones 21. Other States soon followed and then, in re­ sponse to updated guidance from national organizations, lowered the presumption to a BC level of 0.10%. Don­ igan 2223. Later, States moved away from mere pre­ sumptions that defendants might rebut, and adopted laws providing that driving with a 0.10% BC or higher was per se illegal. Jacobs 670. Enforcement of laws of this type obviously requires the measurement of BC. One way of doing this is to analyze a sample of a driver’s blood directly. technician with medical training uses a syringe to draw a blood sample from the veins of the subject, who must remain still during the procedure, and then the sample is shipped to a sepa­ rate laboratory for measurement of its alcohol concentra­ tion. See 2 R. Erwin, Defense of Drunk Driving Cases (Erwin). lthough it is possi­ ble for a subject to be forcibly immobilized so that a sam­ ple may be drawn, many States prohibit drawing blood from a driver who resists since this practice helps “to avoid violent confrontations.” South Dakota v. Ne, The most common and economical method of calculating BC is by means of a machine that measures the amount of alcohol in a person’s National Highway Traffic Safety dmin. (NHTS), E. Haire, W. Leaf, D. Preusser, & M. Solomon, Use of Warrants to Reduce Breath Test Re­ fusals: Experiences from North Carolina 1 One such device, called the “Drunkometer,” was invented and first sold in the 130’s. Note, 30 N. C. L. Rev. 302, 303, and n. 10 (152). The test subject would inflate a small balloon, and then the test analyst would release this captured breath into the machine, which forced it through a chemical solution that reacted to the presence of alcohol by changing color. The test analyst could observe the amount of breath required to produce the color change and calculate the subject’s breath alcohol concentration and by extension, BC, from this figure. 30. more practical machine, called the “Breathalyzer,” came into common use beginning in the 150’s, relying on the same basic scientific principles. 3 Erwin at 223; Jones 3. Over time, improved breath test machines were devel­ oped. Today, such devices can detect the presence of alcohol more quickly and accurately than before, typically using infrared technology rather than a chemical reaction. 2 Erwin Jones 36. nd in practice all breath testing machines used for evidentiary purposes must be approved by the National Highway Traffic Safety dmin­ istration. See 1 H. Cohen & J. Green, pprehending and Prosecuting the Drunk Driver These machines are geally regarded as very reliable because the federal standards require that the devices produce accurate and reproducible test results at a variety of BC levels, from the very low to the very high. 77 Fed. Reg. 7 (2012); 2 Erwin Jones 38; see also Cite as: 57 U. S. (2016) 5 Opinion of the Court Measurement of BC based on a breath test requires the cooperation of the person being tested. The subject must take a deep breath and exhale through a mouthpiece that connects to the machine. Berger, How Does it Work? lcohol Breath Testing, 325 British Medical J. 103 (2002) (Berger). Typically the test subject must blow air into the device “ ‘for a period of several seconds’ ” to produce an adequate breath sample, and the process is sometimes repeated so that analysts can compare multiple samples to ensure the device’s accuracy. ; see also 2 Erwin at 211 (describing the Intoxilyzer 011 device as requiring a 12-second exhala­ tion, although the subject may take a new breath about halfway through). Modern breath test machines are designed to capture so-called “deep lung” or alveolar air. at 81. ir from the alveolar region of the lungs provides the best basis for determining the test subject’s BC, for it is in that part of the lungs that alcohol vapor and other gases are exchanged between blood and 2 Erwin 87. When a standard infrared device is used, the whole process takes only a few minutes from start to finish. Berger 103; 2 Erwin 81. Most evi­ dentiary breath tests do not occur next to the vehicle, at the side of the road, but in a police station, where the controlled environment is especially conducive to reliable testing, or in some cases in the officer’s patrol vehicle or in special mobile testing facilities. NHTS, Berning et al., Refusal of Intoxication Testing: Report to Congress and n. 5 Because the cooperation of the test subject is necessary when a breath test is administered and highly preferable when a blood sample is taken, the enactment of laws defining intoxication based on BC made it necessary for 6 States to find a way of securing such cooperation.1 So- called “implied consent” laws were enacted to achieve this result. They provided that cooperation with BC testing was a condition of the privilege of driving on state roads and that the privilege would be rescinded if a suspected drunk driver refused to honor that condition. Donigan 7. The first such law was enacted by New York in 153, and many other States followed suit not long thereafter. at 7. In 162, the Uniform Vehicle Code also included such a provision. Today, “all 50 States have adopted implied consent laws that require motorists, as a condition of operating a motor vehicle within the State, to consent to BC testing if they are arrested or otherwise detained on suspicion of a drunk- driving offense.” Missouri v. 56 U. S. (plurality opinion) (slip op., 8). Suspension or revocation of the motorist’s driver’s license remains the standard legal consequence of refusal. In addition, evi­ dence of the motorist’s refusal is admitted as evidence of likely intoxication in a drunk-driving prosecution. See In recent decades, the States and the Federal Govern­ ment have toughened drunk-driving laws, and those ef­ forts have corresponded to a dramatic decrease in alcohol- related fatalities. s of the early 180’s, the number of annual fatalities averaged 25,000; by 201, the most re­ cent year for which statistics are available, the number had fallen to below 10,000. Presidential Commission on Drunk Driving 1 ; NHTS, Traffic Safety Facts, 201 Data, lcohol-Impaired Driving 2 (NHTS, 201 lcohol-Impaired Driving). One —————— 1 In addition, BC may be determined by testing a subject’s urine, which also requires the test subject’s cooperation. But urine tests appear to be less common in drunk-driving cases than breath and blood tests, and none of the cases before us involves one. Cite as: 57 U. S. (2016) 7 Opinion of the Court legal change has been further lowering the BC standard from 0.10% to 0.08%. See 1 Erwin, at 23 to 2. In addition, many States now impose increased penalties for recidivists and for drivers with a BC level that ex­ ceeds a higher threshold. In North Dakota, for example, the standard penalty for first-time drunk-driving offenders is license suspension and a fine. N. D. Cent. Code nn. ; But an offender with a BC of 0.16% or higher must spend at least two days in jail. In addition, the State imposes increased mandatory minimum sentences for drunk-driving recidivists. Many other States have taken a similar approach, but this new structure threatened to undermine the effective­ ness of implied consent laws. If the penalty for driving with a greatly elevated BC or for repeat violations ex­ ceeds the penalty for refusing to submit to testing, motor­ ists who fear conviction for the more severely punished offenses have an incentive to reject testing. nd in some States, the refusal rate is high. On average, over one-fifth of all drivers asked to submit to BC testing in 2011 refused to do so. NHTS, E. Namuswe, H. Coleman, & Berning, Breath Test Refusal Rates in the United States— 2011 Update 1 (No. 811881, Mar. 201). In North Dakota, the refusal rate for 2011 was a representative 21%. at 2. Minnesota’s was below average, 2%. To combat the problem of test refusal, some States have begun to enact laws making it a crime to refuse to undergo testing. Minnesota has taken this approach for decades. See 18 Minn. Laws p. 1658; 12 Minn. Laws p. 17. nd that may partly explain why its refusal rate now is below the national average. Minnesota’s rate is also half the 2% rate reported for 188, the year before its first criminal refusal law took effect. See Ross, Simon, Cleary, Lewis, & Storkamp, Causes and Consequences of Implied Consent Refusal, 11 lcohol, Drugs and Driving 57, 6 8 (15). North Dakota adopted a similar law, in 2013, after a pair of drunk-driving accidents claimed the lives of an entire young family and another family’s 5- and -year-old boys.2 2013 N. D. Laws pp. 10871088 (codified at 0801(1)(3)). The Federal Government also encourages this approach as a means for overcoming the incentive that drunk drivers have to refuse a test. NHTS, Refusal of Intoxication Testing, at 20. Petitio Danny Birchfield accidentally drove his car off a North Dakota highway on October 10, 2013. state trooper arrived and watched as Birchfield unsuccessfully tried to drive back out of the ditch in which his car was stuck. The trooper approached, caught a strong whiff of alcohol, and saw that Birchfield’s eyes were bloodshot and watery. Birchfield spoke in slurred speech and struggled to stay steady on his feet. t the trooper’s request, Birch- field agreed to take several field sobriety tests and per­ formed poorly on each. He had trouble reciting sections of the alphabet and counting backwards in compliance with the trooper’s directions. Believing that Birchfield was intoxicated, the trooper informed him of his obligation under state law to agree to a BC test. Birchfield consented to a roadside breath test. The device used for this sort of test often differs from the machines used for breath tests administered in a police station and is intended to provide a preliminary assess­ ment of the driver’s BC. See, e.g., Berger 103. Because the reliability of these preliminary or screening breath —————— 2 See Smith, Moving From Grief to ction: Two Families Push for Stronger DUI Laws in N. D., Bismarck Tribune, Feb. 2, 2013, p. 1; Haga, Some Kind of Peace: Parents of Two Young Boys Killed in Campground ccident Urge for Tougher DUI Penalties in N. D., Grand Forks Herald, Jan. 15, 2013, pp. 12. Cite as: 57 U. S. (2016) Opinion of the Court tests varies, many jurisdictions do not permit their numer­ ical results to be admitted in a drunk-driving trial as evidence of a driver’s BC. See geally 3 Erwin In North Dakota, results from this type of test are “used only for determining whether or not a further test shall be given.” N. D. Cent. Code nn. In Birchfield’s case, the screening test estimated that his BC was 0.25%, more than three times the legal limit of 0.08%. See The state trooper arrested Birchfield for driving while impaired, gave the usual Miranda warnings, again ad­ vised him of his obligation under North Dakota law to undergo BC testing, and informed him, as state law requires, see that refusing to take the test would expose him to criminal penalties. In addition to mandatory addiction treatment, sentences range from a mandatory fine of $500 (for first-time offenders) to fines of at least $2,000 and imprisonment of at least one year and one day (for serial offenders). These crimi­ nal penalties apply to blood, breath, and urine test refus­ als alike. See 0801(2), 32001, 3201. lthough faced with the prospect of prosecution under this law, Birchfield refused to let his blood be drawn. Just three months before, Birchfield had received a citation for driving under the influence, and he ultimately pleaded guilty to that offense. State v. Birchfield, Crim. No. 30 2013CR00720 (Dist. Ct. Morton Cty., N. D., Jan. 27, 201). This time he also pleaded guilty—to a misde- meanor violation of the refusal statute—but his plea was a conditional one: while Birchfield admitted refusing the blood test, he argued that the Fourth mendment prohib­ ited criminalizing his refusal to submit to the test. The State District Court rejected this argument and imposed a sentence that accounted for his prior conviction. 0801(5)(b). The sentence included 30 days in jail (20 of which were suspended and 10 of which had already been 10 served), 1 year of unsupervised probation, $1,750 in fine and fees, and mandatory participation in a sobriety pro­ gram and in a substance abuse evaluation. pp. to Pet. for Cert. in No. 1168, p. 20a. On appeal, the North Dakota Supreme Court affirmed. The court found support for the test refusal statute in this Court’s plurality opinion, which had spoken favorably about “acceptable ‘legal tools’ with ‘significant consequences’ for refusing to submit to testing.” (quoting 56 U. S., at (slip op., 8)). B On ugust 5, 2012, Minnesota police received a report of a problem at a South St. Paul boat launch. Three appar­ ently intoxicated men had gotten their truck stuck in the river while attempting to pull their boat out of the water. When police arrived, witnesses informed them that a man in underwear had been driving the truck. That man proved to be William Robert Bernard, Jr., petitio in the second of these cases. Bernard admitted that he had been drinking but denied driving the truck (though he was holding its keys) and refused to perform any field sobriety tests. fter noting that Bernard’s breath smelled of alco­ hol and that his eyes were bloodshot and watery, officers arrested Bernard for driving while impaired. Back at the police station, officers read Bernard Minne­ sota’s implied consent advisory, which like North Dakota’s informs motorists that it is a crime under state law to refuse to submit to a legally required BC test. See Minn. Stat. subd. 2 (201). side from noncriminal penalties like license revocation, subd. 3, test refusal in Minnesota can result in criminal penalties ranging from no more than 0 days’ imprisonment and up to a $1,000 fine for a misdemeanor violation to seven years’ imprisonment and a $1,000 fine for repeat offend­ Cite as: 57 U. S. (2016) 11 Opinion of the Court ers, subd. 12; subds. 23; subd. 2; subd. 2. The officers asked Bernard to take a breath test. fter he refused, prosecutors charged him with test refusal in the first degree because he had four prior impaired-driving convictions. (case below). First-degree refusal carries the highest maximum penalties and a mandatory minimum 3-year prison sen­ tence. subd. 1. The Minnesota District Court dismissed the charges on the ground that the warrantless breath test demanded of Bernard was not permitted under the Fourth mendment. pp. to Pet. for Cert. in No. 1170, pp. 8a, 5a. The Minnesota Court of ppeals reversed, at 6a, and the State Supreme Court affirmed that judgment. Based on the longstanding doctrine that authorizes warrantless searches incident to a lawful arrest, the high court con­ cluded that police did not need a warrant to insist on a test of Bernard’s 772. Two justices dissented. at 77780 (opinion of Page and Stras, JJ.). C police officer spotted our third petitio, Steve Mi­ chael Beylund, driving the streets of Bowman, North Dakota, on the night of ugust 10, 2013. The officer saw Beylund try unsuccessfully to turn into a driveway. In the process, Beylund’s car nearly hit a stop sign before coming to a stop still partly on the public road. The officer walked up to the car and saw that Beylund had an empty wine glass in the center console next to him. Noticing that Beylund also smelled of alcohol, the officer asked him to step out of the car. s Beylund did so, he struggled to keep his balance. The officer arrested Beylund for driving while impaired and took him to a nearby hospital. There he read Beylund 12 North Dakota’s implied consent advisory, informing him that test refusal in these circumstances is itself a crime. See N. D. Cent. Code nn. 2001(3)(a). Unlike the other two petitios in these cases, Beylund agreed to have his blood drawn and analyzed. nurse took a blood sample, which revealed a blood alcohol concentration of 0.250%, more than three times the legal limit. Given the test results, Beylund’s driver’s license was suspended for two years after an administrative hearing. Beylund appealed the hearing officer’s decision to a North Dakota District Court, principally arguing that his con­ sent to the blood test was coerced by the officer’s warning that refusing to consent would itself be a crime. The District Court rejected this argument, and Beylund again appealed. The North Dakota Supreme Court affirmed. In re­ sponse to Beylund’s argument that his consent was insuf­ ficiently voluntary because of the announced criminal penalties for refusal, the court relied on the fact that its then-recent Birchfield decision had upheld the constitu­ tionality of those penalties. ¶¶115, 85 N.W.2d 03, 080. The court also explained that it had found consent offered by a similarly situated motorist to be voluntary, 8 N.W. 2d 5. In that case, the court emphasized that North Dakota’s implied consent advisory was not misleading because it truthfully related the penalties for refusal. at 606. We granted certiorari in all three cases and consolidated them for argument, see 577 U. S. in order to decide whether motorists lawfully arrested for drunk driving may be convicted of a crime or otherwise penalized for refusing to take a warrantless test measuring the alcohol in their bloodstream. Cite as: 57 U. S. (2016) 13 Opinion of the Court I s our summary of the facts and proceedings in these three cases reveals, the cases differ in some respects. Petitios Birchfield and Beylund were told that they were obligated to submit to a blood test, whereas petitio Bernard was informed that a breath test was required. Birchfield and Bernard each refused to undergo a test and was convicted of a crime for his refusal. Beylund complied with the demand for a blood sample, and his license was then suspended in an administrative proceeding based on test results that revealed a very high blood alcohol level. Despite these differences, success for all three petition­ ers depends on the proposition that the criminal law ordi­ narily may not compel a motorist to submit to the taking of a blood sample or to a breath test unless a warrant authorizing such testing is issued by a magistrate. If, on the other hand, such warrantless searches comport with the Fourth mendment, it follows that a State may crimi­ nalize the refusal to comply with a demand to submit to the required testing, just as a State may make it a crime for a person to obstruct the execution of a valid search warrant. See, e.g., 33d (200); Fla. Stat. ; N. J. Stat. nn. (West 1); 18 U.S. C. cf. (“When a law enforcement officer claims authority to search a home under a warrant, he announces in effect that the occupant has no right to resist the search”). nd by the same token, if such warrantless searches are constitutional, there is no obstacle under federal law to the admission of the results that they yield in either a criminal prosecution or a civil or administrative proceeding. We therefore begin by considering whether the searches demanded in these cases were consistent with the Fourth mendment. 1 IV The Fourth mendment provides: “The right of the people to be secure in their per­ sons, houses, papers, and effects, against unreasona­ ble searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The mendment thus prohibits “unreasonable searches,” and our cases establish that the taking of a blood sam- ple or the administration of a breath test is a search. See v. Railway Labor Executives’ ssn., U.S. 602, 6166 (18); v. California, 38 U.S. 757, 767768 (166). The question, then, is whether the warrantless searches at issue here were reasonable. See Vernonia School Dist. (15) (“s the text of the Fourth mendment indicates, the ultimate measure of the constitutionality of a govern­ mental search is ‘reasonableness’ ”). “[T]he text of the Fourth mendment does not specify when a search warrant must be obtained.” Kentucky v. ; see also California v. cevedo, (Scalia, J., concur- ring in judgment) (“What [the text] explicitly states regard- ing warrants is by way of limitation upon their issuance rather than requirement of their use”). But “this Court has inferred that a warrant must [usually] be secured.” 563 U.S., at This usual requirement, however, is subject to a number of exceptions. We have previously had occasion to examine whether one such exception—for “exigent circumstances”—applies in drunk-driving investigations. The exigent circum- stances exception allows a warrantless search when an emergency leaves police insufficient time to seek a warrant. Cite as: 57 U. S. (2016) 15 Opinion of the Court It permits, for instance, the warrantless entry of private property when there is a need to provide urgent aid to those inside, when police are in hot pursuit of a fleeing suspect, and when police fear the imminent destruction of evidence. In v. California, we held that drunk driving may present such an exigency. There, an officer directed hospital personnel to take a blood sample from a driver who was receiving treatment for car crash injuries. 38 U.S., at 758. The Court concluded that the officer “might reasonably have believed that he was confronted with an emergency” that left no time to seek a warrant because “the percentage of alcohol in the blood begins to diminish shortly after drinking stops.” On the specific facts of that case, where time had already been lost taking the driver to the hospital and investigating the accident, the Court found no Fourth mendment violation even though the warrantless blood draw took place over the driver’s objection. 772. More recently, though, we have held that the natural dissipation of alcohol from the bloodstream does not al- ways constitute an exigency justifying the warrantless taking of a blood sample. That was the holding of Mis- souri v. 56 U. S. where the State of Mis­ souri was seeking a per se rule that “whenever an officer has probable cause to believe an individual has been driving under the influence of alcohol, exigent circum­ stances will necessarily exist because BC evidence is inherently evanescent.” at (opinion of the Court) (slip op., at 8). We disagreed, emphasizing that had adopted a case-specific analysis depending on “all of the facts and circumstances of the particular case.” 56 U. S., at (slip op., at 8). We refused to “depart from careful case-by-case assessment of exigency and adopt the categorical rule proposed by the State.” at (slip 16 op., at ). While emphasizing that the exigent-circumstances exception must be applied on a case-by-case basis, the Court noted that other exceptions to the warrant requirement “apply categorically” rather than in a “case- specific” fashion. at n. 3 (slip op., at 7, n. 3). One of these, as the opinion recognized, is the long- established rule that a warrantless search may be con­ ducted incident to a lawful arrest. See But the Court pointedly did not address any potential justification for warrantless testing of drunk-driving suspects except for the exception “at issue in th[e] case,” namely, the exception for exigent circumstances. at (slip op., ). Neither did any of the Justices who wrote separately. See at (KENNEDY, J., concurring in part) (slip op., 2); at (ROBERTS, C. J., concur­ ring in part and dissenting in part) (slip op., 11); at (THOMS, J., dissenting) (slip op., 8). In the three cases now before us, the drivers were searched or told that they were required to submit to a search after being placed under arrest for drunk driving. We therefore consider how the search-incident-to-arrest doctrine applies to breath and blood tests incident to such arrests. V The search-incident-to-arrest doctrine has an ancient pedigree. Well before the Nation’s founding, it was recog­ nized that officers carrying out a lawful arrest had the authority to make a warrantless search of the arrestee’s person. n 18th-century manual for justices of the peace provides a representative picture of usual practice shortly before the Fourth mendment’s adoption: “[] thorough search of the felon is of the utmost con­ sequence to your own safety, and the benefit of the Cite as: 57 U. S. (2016) Opinion of the Court public, as by this means he will be deprived of in­ struments of mischief, and evidence may probably be found on him sufficient to convict him, of which, if he has either time or opportunity allowed him, he will besure [sic] to find some means to get rid of.” The Conductor Gealis 1 (J. Parker ed. 88) (reprint­ ing S. Welch, Observations on the Office of Constable 1 (5)). One Fourth mendment historian has observed that, prior to merican independence, “[a]nyone arrested could expect that not only his surface clothing but his body, luggage, and saddlebags would be searched and, perhaps, his shoes, socks, and mouth as well.” W. Cuddihy, The Fourth mendment: Origins and Original Meaning: 602 1, p. 20 (200). No historical evidence suggests that the Fourth mendment altered the permissible bounds of arrestee searches. On the contrary, legal scholars agree that “the legitimacy of body searches as an adjunct to the arrest process had been thoroughly established in colonial times, so much so that their constitutionality in 8 can not be doubted.” ; see also T. Taylor, Two Studies in Constitutional Interpretation 282, 3, 5 (16); Stuntz, The Substantive Origins of Criminal Procedure, 105 Yale L. J. 33, 01 (15). Few reported cases addressed the legality of such searches before the 1th century, apparently because the point was not much contested. In the 1th century, the subject came up for discussion more often, but court deci­ sions and treatises alike confirmed the searches’ broad acceptance. E.g., 53 50, ; Ex parte Hurn, 2 la. 102, 112, ; ; Reifsnyder v. Lee, Iowa 101, 103 (1876); F. Wharton, Criminal Pleading and Prac­ 18 tice p. 5 (8th ed. 1880); 1 J. Bishop, Criminal Proce­ dure p. 127 (2d ed. 1872). When this Court first addressed the question, we too confirmed (albeit in dicta) “the right on the part of the Government, always recognized under English and meri­ can law, to search the person of the accused when legally arrested to discover and seize the fruits or evidence of crime.” The exception quickly became a fixture in our Fourth mendment case law. But in the decades that followed, we grappled repeatedly with the question of the authority of arresting officers to search the area surrounding the arrestee, and our decisions reached results that were not easy to reconcile. See, e.g., United States v. Lefkowitz, 285 U.S. 52, 6 (132) (forbidding “unrestrained” search of room where arrest was made); Harris v. United States, 331 U.S. 15, 1, 152 (17) (permitting complete search of arrestee’s four-room apartment); United (permitting complete search of arrestee’s office). We attempted to clarify the law regarding searches incident to arrest in 75 (16), a case in which officers had searched the ar­ restee’s entire three-bedroom house. endorsed a geal rule that arresting officers, in order to prevent the arrestee from obtaining a weapon or destroying evidence, could search both “the person arrested” and “the area ‘within his immediate control.’ ” “[N]o compa­ rable justification,” we said, supported “routinely search­ ing any room other than that in which an arrest occurs— or, for that matter, for searching through all the desk drawers or other closed or concealed areas in that room itself.” Four years later, in United States v. 1 U.S. 218 we elaborated on ’s meaning. We noted that the search-incident-to-arrest rule actually comprises Cite as: 57 U. S. (2016) 1 Opinion of the Court “two distinct propositions”: “The first is that a search may be made of the person of the arrestee by virtue of the lawful arrest. The second is that a search may be made of the area within the control of the arrestee.” 1 U.S., at 22. fter a thorough review of the relevant common law history, we repudiated “case-by-case adjudication” of the question whether an arresting officer had the authority to carry out a search of the arrestee’s person. The permissibility of such searches, we held, does not depend on whether a search of a particular arrestee is likely to protect officer safety or evidence: “The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evi­ dence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect.” Instead, the mere “fact of the lawful arrest” justifies “a full search of the person.” In itself, that meant that police had acted per­ missibly in searching inside a package of cigarettes found on the man they arrested. Our decision two Terms ago in Riley v. California, 573 U. S. (201), reaffirmed “’s categorical rule” and explained how the rule should be applied in situations that could not have been envisioned when the Fourth mendment was adopted. at (slip op., at ). Riley concerned a search of data contained in the memory of a modern cell phone. “bsent more precise guidance from the founding era,” the Court wrote, “we geally deter­ mine whether to exempt a given type of search from the warrant requirement ‘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.’ ” Blood and breath tests to measure blood alcohol concen­ tration are not as new as searches of cell phones, but here, 20 as in Riley, the founding era does not provide any defini­ tive guidance as to whether they should be allowed inci­ dent to arrest.3 Lacking such guidance, we engage in the same mode of analysis as in Riley: we examine “the degree to which [they] intrud[e] upon an individual’s privacy and the degree to which [they are] needed for the promo­ tion of legitimate governmental interests.’ ” B We begin by considering the impact of breath and blood tests on individual privacy interests, and we will discuss each type of test in turn. 1 Years ago we said that breath tests do not “implicat[e] significant privacy concerns.” U.S., at 626. That remains so today. First, the physical intrusion is almost negligible. Breath tests “do not require piercing the skin” and entail “a minimum of inconvenience.” s Minnesota describes its version of the breath test, the process re­ quires the arrestee to blow continuously for to 15 sec­ onds into a straw-like mouthpiece that is connected by a tube to the test machine. Brief for Respondent in No. 1 170, p. 20. Independent sources describe other breath test devices in essentially the same terms. See The effort is no more demanding than blowing up a party balloon. Petitio Bernard argues, however, that the process is nevertheless a significant intrusion because the arrestee must insert the mouthpiece of the machine into his or her —————— 3 t most, there may be evidence that an arrestee’s mouth could be searched in appropriate circumstances at the time of the founding. See W. Cuddihy, Fourth mendment: Origins and Original Meaning: 602 1, p. 20 (200). Still, searching a mouth for weapons or contraband is not the same as requiring an arrestee to give up breath or blood. Cite as: 57 U. S. (2016) 21 Opinion of the Court mouth. Reply Brief in No. 1170, p. But there is nothing painful or strange about this requirement. The use of a straw to drink beverages is a common practice and one to which few object. Nor, contrary to Bernard, is the test a significant intru­ sion because it “does not capture an ordinary exhalation of the kind that routinely is exposed to the public” but in­ stead “ ‘requires a sample of “alveolar” (deep lung) air.’ ” Brief for Petitio in No. 1170, p. 2. Humans have never been known to assert a possessory interest in or any emotional attachment to any of the air in their lungs. The air that humans exhale is not part of their bodies. Exha­ lation is a natural process—indeed, one that is necessary for life. Humans cannot hold their breath for more than a few minutes, and all the air that is breathed into a breath analyzing machine, including deep lung air, soo or later would be exhaled even without the test. See ge- ally J. Hall, Guyton and Hall Textbook of Medical Physiol­ ogy 520 (13th ed. 2016). In prior cases, we have upheld warrantless searches involving physical intrusions that were at least as signifi­ cant as that entailed in the administration of a breath test. Just recently we described the process of collecting a DN sample by rubbing a swab on the inside of a person’s cheek as a “negligible” intrusion. Maryland v. 56 U. S. (slip op., at 8). We have also upheld scraping underneath a suspect’s fingernails to find evi­ dence of a crime, calling that a “very limited intrusion.” breath test is no more intrusive than either of these procedures. Second, breath tests are capable of revealing only one bit of information, the amount of alcohol in the subject’s In this respect, they contrast sharply with the sample of cells collected by the swab in Maryland v. lthough the DN obtained under the law at issue in that case could lawfully be used only for identification pur- 22 poses, 56 U. S., at (slip op., ), the process put into the possession of law enforcement authorities a sample from which a wealth of additional, highly personal information could potentially be obtained. breath test, by contrast, results in a BC reading on a machine, nothing more. No sample of anything is left in the possession of the police. Finally, participation in a breath test is not an experi­ ence that is likely to cause any great enhancement in the embarrassment that is inherent in any arrest. See Skin- (breath test involves “a minimum of embarrassment”). The act of blowing into a straw is not inherently embarrassing, nor are evidentiary breath tests administered in a man that causes embarrassment. gain, such tests are normally administered in private at a police station, in a patrol car, or in a mobile testing facility, out of public view. See Moreover, once placed under arrest, the individual’s expectation of privacy is necessarily diminished. Maryland v. at (slip op., at 225). For all these reasons, we reiterate what we said in : breath test does not “implicat[e] significant privacy concerns.” U.S., at 626. 2 Blood tests are a different matter. They “require pierc­ ing the skin” and extract a part of the subject’s body. ; see also 56 U. S., at (opinion of the Court) (slip op., at ) (blood draws are “a compelled physical intrusion beneath [the defendant’s] skin and into his veins”); at (opinion of ROBERTS, C. J.) (slip op., at ) (blood draws are “significant bodily intrusions”). nd while humans exhale air from their lungs many times per minute, humans do not continually shed blood. It is true, of course, that people voluntarily submit to the taking of blood samples as part of a physical examination, and the process involves little pain or risk. Cite as: 57 U. S. (2016) 23 Opinion of the Court See at (plurality opinion) (slip op., 6) (citing ). Nevertheless, for many, the process is not one they relish. It is significantly more intrusive than blowing into a tube. Perhaps that is why many States’ implied consent laws, including Minnesota’s, specifically prescribe that breath tests be administered in the usual drunk-driving case instead of blood tests or give motorists a measure of choice over which test to take. See 1 Erwin Minn. Stat. subd. 3. In addition, a blood test, unlike a breath test, places in the hands of law enforcement authorities a sample that can be preserved and from which it is possible to extract information beyond a simple BC reading. Even if the law enforcement agency is precluded from testing the blood for any purpose other than to measure BC, the potential remains and may result in anxiety for the person tested. C Having assessed the impact of breath and blood testing on privacy interests, we now look to the States’ asserted need to obtain BC readings for persons arrested for drunk driving. 1 The States and the Federal Government have a “para­ mount interest in preserving the safety of public highways.” lthough the number of deaths and injuries caused by motor vehicle accidents has declined over the years, the statistics are still staggering. See, e.g., NHTS, Traffic Safety Facts 15—Overview 2 (No. 5F7, 15) (7,087 fatalities, 3,16,000 injuries in 188); NHTS, Traffic Safety Facts, 201 Data, Summary of Motor Vehicle Crashes 1 (No. 812263, May 2016) (Table 1) (2,8 fatali­ ties, 1,68,000 injuries in 201). 2 lcohol consumption is a leading cause of traffic fatali­ ties and injuries. During the past decade, annual fatali­ ties in drunk-driving accidents ranged from 13,582 deaths in 2005 to865 deaths in 2011. NHTS, 201 lcohol- Impaired Driving 2. The most recent data report a total of67 such fatalities in 201—on average, one death every 53 minutes. Our cases have long recognized the “carnage” and “slaughter” caused by drunk drivers. Ne- U.S., 58; Breithaupt v. bram, 352 U.S. 32, 3 (157). JUSTICE SOTOMYOR’s partial dissent suggests that States’ interests in fighting drunk driving are satisfied once suspected drunk drivers are arrested, since such arrests take intoxicated drivers off the roads where they might do harm. See post, at (opinion concurring in part and dissenting in part). But of course States are not solely concerned with neutralizing the threat posed by a drunk driver who has already gotten behind the wheel. They also have a compelling interest in creating effective “de­ terrent[s] to drunken driving” so such individuals make responsible decisions and do not become a threat to others in the first place. 8. To deter potential drunk drivers and thereby reduce alcohol-related injuries, the States and the Federal Gov­ ernment have taken the series of steps that we recounted earlier. See at 28. We briefly recapitulate. fter pegging inebriation to a specific level of blood alcohol, States passed implied consent laws to induce motorists to submit to BC testing. While these laws originally pro­ vided that refusal to submit could result in the loss of the privilege of driving and the use of evidence of refusal in a drunk-driving prosecution, more recently States and the Federal Government have concluded that these conse­ quences are insufficient. In particular, license suspension alone is unlikely to persuade the most dangerous offend­ ers, such as those who drive with a BC significantly Cite as: 57 U. S. (2016) 25 Opinion of the Court above the current limit of 0.08% and recidivists, to agree to a test that would lead to severe criminal sanctions. NHTS, Implied Consent Refusal Impact, pp. xvii, 83 ; NHTS, Use of Warrants for Breath Test Refusal 1 (No. 810852, Oct. 2007). The laws at issue in the present cases—which make it a crime to refuse to submit to a BC test—are designed to provide an incen­ tive to cooperate in such cases, and we conclude that they serve a very important function. 2 Petitios and JUSTICE SOTOMYOR contend that the States and the Federal Government could combat drunk driving in other ways that do not have the same impact on personal privacy. Their arguments are unconvincing. The chief argument on this score is that an officer mak­ ing an arrest for drunk driving should not be allowed to administer a BC test unless the officer procures a search warrant or could not do so in time to obtain usable test results. The governmental interest in warrantless breath testing, JUSTICE SOTOMYOR claims, turns on “ ‘whether the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search.’ ” Post, ). This argument contravenes our decisions holding that the legality of a search incident to arrest must be judged on the basis of categorical rules. In for example, no one claimed that the object of the search, a package of cigarettes, presented any danger to the arresting officer or was at risk of being destroyed in the time that it would have taken to secure a search warrant. The Court never­ theless upheld the constitutionality of a warrantless search of the package, concluding that a categorical rule was needed to give police adequate guidance: “ police officer’s determination as to how and where to search the 26 person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth mendment does not require to be broken down in each instance into an analysis of each step in the search.” 1 U.S., ; cf. Riley, 573 U. S., at (slip op., at 22) (“If police are to have workable rules, the balancing of the competing inter­ ests must in large part be done on a categorical basis—not in an ad hoc, case-by-case fashion by individual police officers” (brackets, ellipsis, and internal quotation marks omitted)). It is not surprising, then, that the language JUSTICE SOTOMYOR quotes to justify her approach comes not from our search-incident-to-arrest case law, but a case that addressed routine home searches for possible housing code violations. See 387 U.S., 26. ’s express concern in the passage that the dissent quotes was “whether the public interest demands creation of a geal exception to the Fourth mendment’s warrant require­ ment.” 33 did not explain how to apply an existing exception, let alone the long-established exception for searches incident to a lawful arrest, whose applicability, as and Riley make plain, has never turned on case-specific variables such as how quickly the officer will be able to obtain a warrant in the particular circumstances he faces. In advocating the case-by-case approach, petitios and JUSTICE SOTOMYOR cite language in our opin­ ion. See Brief for Petitio in No. 1168, p. 1; post, at 12. But concerned an exception to the warrant requirement—for exigent circumstances—that always requires case-by-case determinations. That was the basis for our decision in that case. 56 U. S., at (slip op., at ). lthough JUSTICE SOTOMYOR contends that the categorical search-incident-to-arrest doctrine and case-by­ case exigent circumstances doctrine are actually parts of a single framework, post, at 67, and n. 3, in the Cite as: 57 U. S. (2016) 27 Opinion of the Court Court was careful to note that the decision did not address any other exceptions to the warrant requirement, 56 U. S., at n. 3 (slip op., at 7, n. 3). Petitios and JUSTICE SOTOMYOR next suggest that requiring a warrant for BC testing in every case in which a motorist is arrested for drunk driving would not impose any great burden on the police or the courts. But of course the same argument could be made about searching through objects found on the arrestee’s possession, which our cases permit even in the absence of a warrant. What about the cigarette package in ? What if a motor­ ist arrested for drunk driving has a flask in his pocket? What if a motorist arrested for driving while under the influence of marijuana has what appears to be a mari- juana cigarette on his person? What about an unmarked bottle of pills? If a search warrant were required for every search incident to arrest that does not involve exigent circum­ stances, the courts would be swamped. nd even if we arbitrarily singled out BC tests incident to arrest for this special treatment, as it appears the dissent would do, see post, 21, the impact on the courts would be consid­ erable. The number of arrests every year for driving under the influence is enormous—more than 1.1 million in 201. FBI, Uniform Crime Report, Crime in the United States, 201, rrests 2 Particularly in sparsely populated areas, it would be no small task for courts to field a large new influx of warrant applications that could come on any day of the year and at any hour. In many jurisdictions, judicial officers have the authority to issue warrants only within their own districts, see, e.g., Fed. Rule Crim. Proc. 1(b); N. D. Rule Crim. Proc. 1(a) (201620), and in rural areas, some districts may have only a small number of judicial officers. North Dakota, for instance, has only 51 state district 28 judges spread across eight judicial districts. Those judges are assisted by 31 magistrates, and there are no magis­ trates in 20 of the State’s 53 counties.5 t any given loca­ tion in the State, then, relatively few state officials have authority to issue search warrants.6 Yet the State, with a population of roughly 70,000, sees nearly 7,000 drunk- driving arrests each year. Office of North Dakota ttor­ ney Geal, Crime in North Dakota, 201, pp. 5, 7 With a small number of judicial officers author­ ized to issue warrants in some parts of the State, the burden of fielding BC warrant applications 2 hours per day, 365 days of the year would not be the light burden that petitios and JUSTICE SOTOMYOR suggest. In light of this burden and our prior search-incident-to­ arrest precedents, petitios would at a minimum have to show some special need for warrants for BC testing. It is therefore appropriate to consider the benefits that such applications would provide. Search warrants protect privacy in two main ways. First, they ensure that a search is not carried out unless a neutral magistrate makes an independent determination that there is proba­ ble cause to believe that evidence will be found. See, e.g., Riley, 573 U. S., at (slip op., ). Second, if the mag­ istrate finds probable cause, the warrant limits the intru­ sion on privacy by specifying the scope of the search—that is, the area that can be searched and the items that can be sought. United —————— See North Dakota Supreme Court, ll District Judges, http:// www.ndcourts.gov/court/districts/judges.htm (all Internet materials as last visited June 21, 2016). 5 See North Dakota Supreme Court, Magistrates, http://www.ndcourts.gov/ court/counties/magistra/members.htm. 6 North Dakota Supreme Court justices apparently also have author- ity to issue warrants statewide. See ND Op. tty. Gen. L132, p. 2 (Dec. 30, 1). But we highly doubt that they regularly handle search- warrant applications, much less during graveyard shifts. Cite as: 57 U. S. (2016) 2 Opinion of the Court abrogated on other grounds, cevedo, How well would these functions be performed by the warrant applications that petitios propose? In order to persuade a magistrate that there is probable cause for a search warrant, the officer would typically recite the same facts that led the officer to find that there was probable cause for arrest, namely, that there is probable cause to believe that a BC test will reveal that the motorist’s blood alcohol level is over the limit. s these three cases suggest, see Part the facts that establish proba­ ble cause are largely the same from one drunk-driving stop to the next and consist largely of the officer’s own characterization of his or her observations—for example, that there was a strong odor of alcohol, that the motorist wobbled when attempting to stand, that the motorist paused when reciting the alphabet or counting backwards, and so on. magistrate would be in a poor position to challenge such characterizations. s for the second function served by search warrants— delineating the scope of a search—the warrants in ques­ tion here would not serve that function at all. In every case the scope of the warrant would simply be a BC test of the arrestee. U.S., at 622 (“[I]n light of the standardized nature of the tests and the minimal discretion vested in those charged with administering the program, there are virtually no facts for a neutral magis­ trate to evaluate”). For these reasons, requiring the police to obtain a warrant in every case would impose a substan­ tial burden but no commensurate benefit. Petitios advance other alternatives to warrantless BC tests incident to arrest, but these are poor substi­ tutes. Relying on a recent NHTS report, petitio Birchfield identifies 1 strategies that he claims would be at least as effective as implied consent laws, including high-visibility sobriety checkpoints, installing ignition interlocks on repeat offenders’ cars that would disable 30 their operation when the driver’s breath reveals a suffi­ ciently high alcohol concentration, and alcohol treatment programs. Brief for Petitio in No. 1168, at 5. But Birchfield ignores the fact that the cited report de­ scribes many of these measures, such as checkpoints, as significantly more costly than test refusal penalties. NHTS, Goodwin et al., Countermeasures That Work: Highway Safety Countermeasures Guide for State Highway Safety Offices, p. 17 Others, such as ignition interlocks, target only a segment of the drunk-driver population. nd still others, such as treatment programs, are already in widespread use, see 8, including in North Dakota and Minnesota. Moreover, the same NHTS report, in line with the agen­ cy’s guidance elsewhere, stresses that BC test refusal penalties would be more effective if the consequences for refusal were made more severe, including through the addition of criminal penalties. 16 to 1. 3 Petitio Bernard objects to the whole idea of analyz­ ing breath and blood tests as searches incident to arrest. That doctrine, he argues, does not protect the sort of gov­ ernmental interests that warrantless breath and blood tests serve. On his reading, this Court’s precedents per­ mit a search of an arrestee solely to prevent the arrestee from obtaining a weapon or taking steps to destroy evi­ dence. See Reply Brief in No. 1170, at 6. In for example, the Court derived its limitation for the scope of the permitted search—“the area into which an arrestee might reach”—from the principle that officers may rea­ sonably search “the area from within which he might gain possession of a weapon or destructible evidence.” 35 U.S., Stopping an arrestee from destroying evi­ dence, Bernard argues, is critically different from prevent­ ing the loss of blood alcohol evidence as the result of the Cite as: 57 U. S. (2016) 31 Opinion of the Court body’s metabolism of alcohol, a natural process over which the arrestee has little control. Reply Brief in No. 1170, 6. The distinction that Bernard draws between an ar­ restee’s active destruction of evidence and the loss of evidence due to a natural process makes little sense. In both situations the State is justifiably concerned that evidence may be lost, and Bernard does not explain why the cause of the loss should be dispositive. nd in fact many of this Court’s post- cases have recognized the State’s concern, not just in avoiding an arrestee’s intentional destruction of evidence, but in “evidence preservation” or avoiding “the loss of evidence” more gen­ erally. Riley, 573 U. S., at (slip op., at 8); see also (“the need to preserve evidence on his person”); 11811 (18) (“the need to discover and preserve evidence;” “the concern for destruction or loss of evidence” (emphasis added)); 6 (the need to “safeguard evidence”). This concern for preserving evidence or preventing its loss readily encompasses the inevitable metabolization of alcohol in the blood. Nor is there any reason to suspect that ’s use of the word “destruction,” 35 U.S., was a deliberate decision to rule out evidence loss that is mostly beyond the arrestee’s control. The case did not involve any evidence that was subject to dissipation through natural processes, and there is no sign in the opinion that such a situation was on the Court’s mind. Bernard attempts to derive more concrete support for his position from In that case, the Court stated that the “destruction of evidence under the direct control of the accused” is a danger that is not present “with respect to searches involving intrusions beyond the body’s surface.” 38 U.S., at 76. Bernard reads this to mean that an arrestee cannot be required “to take a chem­ 32 ical test” incident to arrest, Brief for Petitio in No. 1 170, but by using the term “chemical test,” Ber­ nard obscures the fact that ’s passage was addressed to the type of test at issue in that case, namely a blood test. The Court described blood tests as “searches involving intrusions beyond the body’s surface,” and it saw these searches as implicating important “interests in human dignity and privacy,” 38 U.S., at 76770. l- though the Court appreciated as well that blood tests “in­ volv[e] virtually no risk, trauma, or pain,” its point was that such searches still impinge on far more sensitive interests than the typical search of the person of an arrestee. at 2223. But breath tests, unlike blood tests, “are not invasive of the body,” U.S., at 626 and therefore the Court’s comments in are inapposite when it comes to the type of test Bernard was asked to take. did not involve a breath test, and on the question of breath tests’ legality, said nothing. Finally, Bernard supports his distinction using a pas­ sage from the opinion, which distinguishes be­ tween “easily disposable evidence” over “which the suspect has control” and evidence, like blood alcohol evidence, that is lost through a natural process “in a gradual and rela­ tively predictable man.” 56 U. S., at (slip op., at 10); see Reply Brief in No. 1170, 6. Bernard fails to note the issue that this paragraph addressed. concerned only one exception to the usual warrant re­ quirement, the exception for exigent circumstances, and as previously discussed, that exception has always been understood to involve an evaluation of the particular facts of each case. Here, by contrast, we are concerned with the search-incident-to-arrest exception, and as we made clear in and repeated in itself, this authority is categorical. It does not depend on an evaluation of the threat to officer safety or the threat of evidence loss in a Cite as: 57 U. S. (2016) 33 Opinion of the Court particular case.7 Having assessed the effect of BC tests on privacy interests and the need for such tests, we conclude that the Fourth mendment permits warrantless breath tests incident to arrests for drunk driving. The impact of breath tests on privacy is slight, and the need for BC testing is great. We reach a different conclusion with respect to blood tests. Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availa­ bility of the less invasive alternative of a breath test. Respondents have offered no satisfactory justification for demanding the more intrusive alternative without a warrant. Neither respondents nor their amici dispute the effec­ —————— 7 JUSTICE SOTOMYOR objects to treating warrantless breath tests as searches incident to a lawful arrest on two additional grounds. First, she maintains that “[a]ll of this Court’s postarrest exceptions to the warrant requirement require a law enforcement interest separate from criminal investigation.” Post, t least with respect to the search-incident-to-arrest doctrine, that is not true. s the historical authorities discussed earlier attest, see Part V, the doctrine has always been understood as serving investigative ends, such as “discover[ing] and seiz[ing] evidences of crime.” ; see also United States v. (emphasizing “the need to discover evi­ dence”). Using breath tests to obtain evidence of intoxication is there­ fore well within the historical understanding of the doctrine’s purposes. Second, JUSTICE SOTOMYOR contends that the search-incident-to­ arrest doctrine does not apply when “a narrower exception to the warrant requirement adequately satisfies the governmental needs asserted.” Post, at 7, n. 3; see also post, at 1. But while this Court’s cases have certainly recognized that “more targeted” exceptions to the warrant requirement may justify a warrantless search even when the search-incident-to-arrest exception would not, Riley v. Cali- fornia, 573 U. S. (201) (slip op., ), JUSTICE SOTOMYOR cites no authority for the proposition that an exception to the warrant requirement cannot apply simply because a “narrower” exception might apply. 3 tiveness of breath tests in measuring BC. Breath tests have been in common use for many years. Their results are admissible in court and are widely credited by juries, and respondents do not dispute their accuracy or utility. What, then, is the justification for warrantless blood tests? One advantage of blood tests is their ability to detect not just alcohol but also other substances that can impair a driver’s ability to operate a car safely. See Brief for New Jersey et al. as mici Curiae ; Brief for United States as micus Curiae 6. breath test cannot do this, but police have other measures at their disposal when they have reason to believe that a motorist may be under the influ­ ence of some other substance (for example, if a breath test indicates that a clearly impaired motorist has little if any alcohol in his blood). Nothing prevents the police from seeking a warrant for a blood test when there is sufficient time to do so in the particular circumstances or from relying on the exigent circumstances exception to the warrant requirement when there is not. See 56 U. S., at (slip op., at 2223). blood test also requires less driver participation than a breath test. In order for a technician to take a blood sample, all that is needed is for the subject to remain still, either voluntarily or by being immobilized. Thus, it is possible to extract a blood sample from a subject who forcibly resists, but many States reasonably prefer not to take this step. See, e.g., Ne, U.S., North Dakota, for example, tells us that it geally op­ poses this practice because of the risk of dangerous alter­ cations between police officers and arrestees in rural areas where the arresting officer may not have backup. Brief for Respondent in No. 1168, p. 2. Under current North Dakota law, only in cases involving an accident that re­ sults in death or serious injury may blood be taken from arrestees who resist. Compare N. D. Cent. Code nn. 200(1), 32001, with 2001.1. Cite as: 57 U. S. (2016) 35 Opinion of the Court It is true that a blood test, unlike a breath test, may be administered to a person who is unconscious (perhaps as a result of a crash) or who is unable to do what is needed to take a breath test due to profound intoxication or injuries. But we have no reason to believe that such situations are common in drunk-driving arrests, and when they arise, the police may apply for a warrant if need be. breath test may also be ineffective if an arrestee deliberately attempts to prevent an accurate reading by failing to blow into the tube for the requisite length of time or with the necessary force. But courts have held that such conduct qualifies as a refusal to undergo testing, e.g., ndrews v. Tur, 36, 368 N.E.2d 1253, 12561257 ; In re Kunneman, 501 P.2d 10, 1011 (Okla. Civ. pp. 172); see geally 1 Erwin (collecting cases), and it may be prosecuted as such. nd again, a warrant for a blood test may be sought. Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law en­ forcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. s in all cases involv­ ing reasonable searches incident to arrest, a warrant is not needed in this situation.8 —————— 8 JUSTICE THOMS partly dissents from this holding, calling any dis­ tinction between breath and blood tests “an arbitrary line in the sand.” Post, (opinion concurring in judgment in part and dissenting in part). dhering to a position that the Court rejected in JUSTICE THOMS would hold that both breath and blood tests are constitutional with or without a warrant because of the natural metab­ olization of alcohol in the bloodstream. Post, 5. Yet JUSTICE THOMS does not dispute our conclusions that blood draws are more invasive than breath tests, that breath tests geally serve state interests in combating drunk driving as effectively as blood tests, and that our decision in Riley calls for a balancing of individual privacy interests and legitimate state interests to determine the reasonableness 36 VI Having concluded that the search incident to arrest doctrine does not justify the warrantless taking of a blood sample, we must address respondents’ alternative argu­ ment that such tests are justified based on the driver’s legally implied consent to submit to them. It is well estab­ lished that a search is reasonable when the subject con­ sents, e.g., 21 and that sometimes consent to a search need not be express but may be fairly inferred from context, cf. 56 U.S. 1, (slip op., at 67); Our prior opinions have referred approvingly to the gen­ eral concept of implied-consent laws that impose civil penalties and evidentiary consequences on motorists who refuse to comply. See, e.g., at (plural- ity opinion) (slip op., 8); Ne, 60. Peti­ tios do not question the constitutionality of those laws, and nothing we say here should be read to cast doubt on them. It is another matter, however, for a State not only to insist upon an intrusive blood test, but also to impose criminal penalties on the refusal to submit to such a test. There must be a limit to the consequences to which motor­ ists may be deemed to have consented by virtue of a deci­ sion to drive on public roads. Respondents and their amici all but concede this point. North Dakota emphasizes that its law makes refusal a misdemeanor and suggests that laws punishing refusal —————— of the category of warrantless search that is at issue. Contrary to JUSTICE THOMS’s contention, this balancing does not leave law en­ forcement officers or lower courts with unpredictable rules, because it is categorical and not “case-by-case,” post, Indeed, today’s decision provides very clear guidance that the Fourth mendment allows warrantless breath tests, but as a geal rule does not allow warrant- less blood draws, incident to a lawful drunk-driving arrest. Cite as: 57 U. S. (2016) Opinion of the Court more severely would present a different issue. Brief for Respondent in No. 1168, 33. Borrowing from our Fifth mendment jurisprudence, the United States sug­ gests that motorists could be deemed to have consented to only those conditions that are “reasonable” in that they have a “nexus” to the privilege of driving and entail penal­ ties that are proportional to severity of the violation. Brief for United States as micus Curiae 2127. But in the Fourth mendment setting, this standard does not differ in substance from the one that we apply, since rea­ sonableness is always the touchstone of Fourth mend­ ment analysis, see Brigham 57 U.S. 38, 03 (2006). nd applying this standard, we conclude that motorists cannot be deemed to have consented to submit to a blood test on pain of committing a criminal offense. V Our remaining task is to apply our legal conclusions to the three cases before us. Petitio Birchfield was criminally prosecuted for refusing a warrantless blood draw, and therefore the search he refused cannot be justified as a search incident to his arrest or on the basis of implied consent. There is no indication in the record or briefing that a breath test would have failed to satisfy the State’s interests in acquir­ ing evidence to enforce its drunk-driving laws against Birchfield. nd North Dakota has not presented any case- specific information to suggest that the exigent circum­ stances exception would have justified a warrantless search. 56 U. S., at (slip op., at 20 23). Unable to see any other basis on which to justify a warrantless test of Birchfield’s blood, we conclude that Birchfield was threatened with an unlawful search and that the judgment affirming his conviction must be reversed. Bernard, on the other hand, was criminally prosecuted 38 for refusing a warrantless breath test. That test was a permissible search incident to Bernard’s arrest for drunk driving, an arrest whose legality Bernard has not con- tested. ccordingly, the Fourth mendment did not re­ quire officers to obtain a warrant prior to demanding the test, and Bernard had no right to refuse it. Unlike the other petitios, Beylund was not prose- cuted for refusing a test. He submitted to a blood test after police told him that the law required his submission, and his license was then suspended and he was fined in an administrative proceeding. The North Dakota Supreme Court held that Beylund’s consent was voluntary on the erroneous assumption that the State could permissibly compel both blood and breath tests. Because voluntari­ ness of consent to a search must be “determined from the totality of all the circumstances,” at 227, we leave it to the state court on remand to reevaluate Beylund’s consent given the partial inaccuracy of the officer’s advisory. We accordingly reverse the judgment of the North Da­ kota Supreme Court in No. 1168 and remand the case for further proceedings not inconsistent with this opinion. We affirm the judgment of the Minnesota Supreme Court in No. 1170. nd we vacate the judgment of the North Dakota Supreme Court in No. 11507 and remand the case for further proceedings not inconsistent with this opinion. It is so ordered. —————— If the court on remand finds that Beylund did not voluntarily con­ sent, it will have to address whether the evidence obtained in the search must be suppressed when the search was carried out pursuant to a state statute, see Heien v. North Carolina, 57 U. S. (201) (slip op., at 810), and the evidence is offered in an administra­ tive rather than criminal proceeding, see Pennsylvania Bd. of Probation and 36336 (18). nd as Beylund notes, remedies may be available to him under state law. See Brief for Petitio in No. 11507, pp. 131. Cite as: 57 U. S. (2016) 1 Opinion of SOTOMYOR, J. SUPREME COURT OF THE UNITED STTES Nos. 1168, 1170, and 11507 DNNY BIRCHFIELD, PETITIONER 1168 v. NORTH DKOT; ON WRIT OF CERTIORRI TO THE SUPREME COURT OF NORTH DKOT WILLIM ROBERT BERNRD, JR., PETITIONER 1170 v. MINNESOT; ND ON WRIT OF CERTIORRI TO THE SUPREME COURT OF MINNESOT STEVE MICHEL BEYLUND, PETITIONER 11507 v. GRNT LEVI, DIRECTOR, NORTH DKOT DEPRTMENT OF TRNSPORTTION ON WRIT OF CERTIORRI TO THE SUPREME COURT OF NORTH DKOT [June 23, 2016] JUSTICE SOTOMYOR, with whom JUSTICE GINSBURG joins, concurring in part and dissenting in part. The Court today considers three consolidated cases. I join the majority’s disposition of Birchfield v. North Da- kota, No. 1168, and Beylund v. Levi, No. 11507, in which the Court holds that the search-incident-to-arrest exception to the Fourth mendment’s warrant require- ment does not permit warrantless blood tests. But I dis- 2 BIRCHFIELD v. NORTH DKOT Opinion of SOTOMYOR, J. sent from the Court’s disposition of Bernard v. Minnesota, No. 1170, in which the Court holds that the same exception permits warrantless breath tests. Because no governmental interest categorically makes it impractical for an officer to obtain a warrant before measuring a driver’s alcohol level, the Fourth mendment prohibits such searches without a warrant, unless exigent circum- stances exist in a particular case.1 I s the Court recognizes, the proper disposition of this case turns on whether the Fourth mendment guarantees a right not to be subjected to a warrantless breath test after being arrested. The Fourth mendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, sup- ported by Oath or affirmation, and particularly de- scribing the place to be searched, and the persons or things to be seized.” The “ultimate touchstone of the Fourth mendment is ‘reasonableness.’ ” Brigham 57 U.S. 38, 03 (2006). citizen’s Fourth mendment right to be free from “unreasonable searches” does not disappear upon arrest. Police officers may want to conduct a range of searches after placing a person under arrest. They may want to pat the arrestee down, search her pockets and purse, peek inside her wallet, scroll through her cellphone, examine her car or dwelling, swab her cheeks, or take —————— 1 Because I see no justification for warrantless blood or warrantless breath tests, I also dissent from the parts of the majority opinion that justify its conclusions with respect to blood tests on the availability of warrantless breath tests. See ante, 3-3. Cite as: 57 U. S. (2016) 3 Opinion of SOTOMYOR, J. blood and breath samples to determine her level of intoxi- cation. But an officer is not authorized to conduct all of these searches simply because he has arrested someone. Each search must be separately analyzed to determine its reasonableness. Both before and after a person has been arrested, war- rants are the usual safeguard against unreasonable searches because they guarantee that the search is not a “random or arbitrary ac[t] of government agents,” but is instead “narrowly limited in its objectives and scope.” v. Railway Labor Executives’ ssn., U.S. 602, 622 (18). Warrants provide the “detached scrutiny of a neutral magistrate, and thus ensur[e] an objective deter- mination whether an intrusion is justified.” nd they give life to our instruction that the Fourth mend- ment “is designed to prevent, not simply to redress, unlaw- ful police action.” Steagald v. United States, 51 U.S. 20, 215 (181) (internal quotation marks omitted). Because securing a warrant before a search is the rule of reasonableness, the warrant requirement is “subject only to a few specifically established and well-delineated excep- tions.” 38 U.S. 37, To determine whether to “exempt a given type of search from the warrant requirement,” this Court traditionally “assess[es], on the one hand, the degree to which it in- trudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legiti- mate governmental interests.” Riley v. California, 573 U. S. (201) (slip op., at ) (internal quotation marks omitted). In weighing “whether the public interest demands creation of a geal exception to the Fourth mendment’s warrant requirement, the question is not whether the public interest justifies the type of search in question,” but, more specifically, “whether the burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search.” v. Municipal Court BIRCHFIELD v. NORTH DKOT Opinion of SOTOMYOR, J. of City and County of San Francisco, ; see also lmeida-Sanchez v. United States, 13 U.S. 266, 282283 (Powell, J., concurring) (noting that in areas ranging from building inspections to auto- mobile searches, the Court’s “geal approach to excep- tions to the warrant requirement” is to determine whether a “ ‘warrant system can be constructed that would be feasible and meaningful’ ”); United 07 U.S. 27, (172) (“We must ask whether a warrant requirement would unduly frustrate the [governmental interest]”).2 pplying these principles in past cases, this Court has recognized two kinds of exceptions to the warrant re- quirement that are implicated here: (1) case-by-case ex- ceptions, where the particularities of an individual case justify a warrantless search in that instance, but not others; and (2) categorical exceptions, where the common- alities among a class of cases justify dispensing with the warrant requirement for all of those cases, regardless of their individual circumstances. Relevant here, the Court allows warrantless searches on a case-by-case basis where the “exigencies” of the particu- lar case “make the needs of law enforcement so compelling that a warrantless search is objectively reasonable” in that —————— 2 The Court is wrong to suggest that because the States are seeking an extension of the “existing” search-incident-to-arrest exception rather than the “creation” of a new exception for breath searches, this Court need not determine whether the governmental interest in these searches can be accomplished without excusing the warrant requirement. nte, at 26. To the contrary, as the very sentence the Court cites il- lustrates, the question is always whether the particular “type of search in question” is reasonable if conducted without a warrant. 387 U.S., 33. To answer that question, in every case, courts must ask whether the “burden of obtaining a warrant is likely to frustrate the governmental purpose behind the search.” This question may be answered based on existing doctrine, or it may require the creation of new doctrine, but it must always be asked. Cite as: 57 U. S. (2016) 5 Opinion of SOTOMYOR, J. instance. Missouri v. 56 U. S. (slip op., ) ). The defining feature of the exigent circum- stances exception is that the need for the search becomes clear only after “all of the facts and circumstances of the particular case” have been considered in light of the “total- ity of the circumstances.” 56 U. S., at (slip op., at 8). Exigencies can include officers’ “need to provide emer- gency assistance to an occupant of a home, engage in ‘hot pursuit’ of a fleeing suspect, or enter a burning building to put out a fire and investigate its cause.” at (slip op., ) (citations omitted). Exigencies can also arise in efforts to measure a driver’s blood alcohol level. In v. California, 38 U.S. 757 (166), for instance, a man sustained injuries in a car accident and was transported to the hospital. While there, a police officer arrested him for drunk driving and ordered a warrantless blood test to measure his blood alcohol content. This Court noted that although the warrant requirement geally applies to postarrest blood tests, a warrantless search was justified in that case because several hours had passed while the police investigated the scene of the crime and was taken to the hospi- tal, precluding a timely securing of a warrant. 771. This Court also recognizes some forms of searches in which the governmental interest will “categorically” out- weigh the person’s privacy interest in virtually any cir- cumstance in which the search is conducted. Relevant here is the search-incident-to-arrest exception. That exception allows officers to conduct a limited postarrest search without a warrant to combat risks that could arise in any arrest situation before a warrant could be obtained: “ ‘to remove any weapons that the [arrestee] might seek to use in order to resist arrest or effect his escape’ ” and to “ ‘seize any evidence on the arrestee’s person in order to 6 BIRCHFIELD v. NORTH DKOT Opinion of SOTOMYOR, J. prevent its concealment or destruction.’ ” Riley, 573 U. S., at (slip op., at 6) (quoting 35 U.S. 752, 763 (16)). That rule applies “categorical[ly]” to all arrests because the need for the warrantless search arises from the very “fact of the lawful arrest,” not from the reason for arrest or the circumstances surrounding it. United States v. 225, Given these different kinds of exceptions to the warrant requirement, if some form of exception is necessary for a particular kind of postarrest search, the next step is to ask whether the governmental need to conduct a warrantless search arises from “threats” that “ ‘lurk in all custodial arrests’ ” and therefore “justif[ies] dispensing with the warrant requirement across the board,” or, instead, whether the threats “may be implicated in a particular way in a particular case” and are therefore “better ad- dressed through consideration of case-specific exceptions to the warrant requirement, such as the one for exigent circumstances.” Riley, 573 U. S., at (slip op., 112) (alterations and internal quotation marks omitted). To condense these doctrinal considerations into a straightforward rule, the question is whether, in light of the individual’s privacy, a “legitimate governmental inter- est” justifies warrantless searches—and, if so, whether that governmental interest is adequately addressed by a case-by-case exception or requires by its nature a categori- cal exception to the warrant requirement. B This Court has twice applied this framework in recent terms. Riley v. California, 573 U. S.addressed whether, after placing a person under arrest, a police officer may conduct a warrantless search of his cell phone data. Cali- fornia asked for a categorical rule, but the Court rejected that request, concluding that cell phones do not present the geic arrest-related harms that have long justified Cite as: 57 U. S. (2016) 7 Opinion of SOTOMYOR, J. the search-incident-to-arrest exception. The Court found that phone data posed neither a danger to officer safety nor a risk of evidence destruction once the physical phone was secured. at (slip op., 015). The Court nevertheless acknowledged that the exigent circum- stances exception might be available in a “now or never situation.” at (slip op., 5) (internal quotation marks omitted). It emphasized that “[i]n light of the availability of the exigent circumstances exception, there is no reason to believe that law enforcement officers will not be able to address” the rare needs that would require an on-the-spot search. at (slip op., at 26). Similarly, Missouri v. 56 U. S.applied this doctrinal analysis to a case involving police efforts to measure drivers’ blood alcohol levels. In that case, Mis- souri argued that the natural dissipation of alcohol in a person’s blood justified a per se exigent circumstances exception to the warrant requirement—in essence, a new kind of categorical exception. The Court recognized that exigencies could exist, like in that would jus- tify warrantless searches. 56 U. S., at (slip op., at ). But it also noted that in many drunk driving situations, no such exigencies exist. Where, for instance, “the war- rant process will not significantly increase the delay” in testing “because an officer can take steps to secure a war- rant” while the subject is being prepared for the test, there is “no plausible justification for an exception to the war- rant requirement.” at (slip op., 0). The Court thus found it unnecessary to “depart from careful case-by- case assessment of exigency and adopt the categorical rule proposed by the State.” at (slip op., at ).3 —————— 3 The Court quibbles with our unremarkable statement that the cate- gorical search-incident-to-arrest doctrine and the case-by-case exigent circumstances doctrine are part of the same framework by arguing that a footnote in was “careful to note that the decision did not address any other exceptions to the warrant requirement.” nte, at 26- 8 BIRCHFIELD v. NORTH DKOT Opinion of SOTOMYOR, J. The States do not challenge ’s holding that a categorical exigency exception is not necessary to accom- modate the governmental interests associated with the dissipation of blood alcohol after drunk-driving arrests. They instead seek to exempt breath tests from the war- rant requirement categorically under the search-incident- to-arrest doctrine. The majority agrees. Both are wrong. s discussed above, regardless of the exception a State requests, the Court’s traditional framework asks whether, in light of the privacy interest at stake, a legitimate gov- —————— 27 (citing 56 U. S., at n. 3 (slip op., at 7, n. 3)). That footnote explains the difference between categorical exceptions and case-by-case exceptions geally. at n. 3. It does nothing to suggest that the two forms of exceptions should not be considered together when analyzing whether it is reasonable to exempt categori- cally a particular form of search from the Fourth mendment’s warrant requirement. It should go without saying that any analysis of whether to apply a Fourth mendment warrant exception must necessarily be compara- tive. If a narrower exception to the warrant requirement adequately satisfies the governmental needs asserted, a more sweeping exception will be overbroad and could lead to unnecessary and “unreasonable searches” under the Fourth mendment. Contrary to the Court’s suggestion that “no authority” supports this proposition, see ante, 3 n. 8, our cases have often deployed this commonsense comparative check. See Riley v. California, 573 U. S. (201) (slip op., at 115) (rejecting the application of the search-incident-to-arrest excep- tion because the exigency exception is a “more targeted wa[y] to ad- dress [the government’s] concerns”); at (slip op., 1) (analyz- ing whether the governmental interest can be “better addressed through consideration of case-specific exceptions to the warrant re- quirement”); at (slip op., at 2627) (noting that “[i]n light of the availability of the exigent circumstances exception, there is no reason to believe that” the governmental interest cannot be satisfied without a categorical search-incident-to-arrest exception); 56 U. S., at (slip op., at 10) (holding that the availability of the exigency exception for circumstances that “make obtaining a warrant impracti- cal” is “reason not to accept the ‘considerable overgealization’ that a per se rule would reflect”). Cite as: 57 U. S. (2016) Opinion of SOTOMYOR, J. ernmental interest ever requires conducting breath searches without a warrant—and, if so, whether that governmental interest is adequately addressed by a case- by-case exception or requires a categorical exception to the warrant requirement. That framework directs the conclu- sion that a categorical search-incident-to-arrest rule for breath tests is unnecessary to address the States’ govern- mental interests in combating drunk driving. Beginning with the governmental interests, there can be no dispute that States must have tools to combat drunk driving. See ante, at 28. But neither the States nor the Court has demonstrated that “obtaining a warrant” in cases not already covered by the exigent circumstances exception “is likely to frustrate the governmental pur- pose[s] behind [this] search.” 387 U.S., 33. First, the Court cites the governmental interest in pro- tecting the public from drunk drivers. See ante, at 2. But it is critical to note that once a person is stopped for drunk driving and arrested, he no longer poses an imme- diate threat to the public. Because the person is already in custody prior to the administration of the breath test, there can be no serious claim that the time it takes to obtain a warrant would increase the danger that drunk driver poses to fellow citizens. Second, the Court cites the governmental interest in preventing the destruction or loss of evidence. See ante, at 30-31. But neither the Court nor the States identify any practical reasons why obtaining a warrant after making an arrest and before conducting a breath test compromises the quality of the evidence obtained. To the contrary, the delays inherent in administering reliable breath tests —————— lthough Bernard’s case arises in Minnesota, North Dakota’s simi- lar breath test laws are before this Court. I therefore consider both States together. 10 BIRCHFIELD v. NORTH DKOT Opinion of SOTOMYOR, J. geally provide ample time to obtain a warrant. There is a common misconception that breath tests are conducted roadside, immediately after a driver is arrested. While some preliminary testing is conducted roadside, reliability concerns with roadside tests confine their use in most circumstances to establishing probable cause for an arrest. See 2 R. Erwin, Defense of Drunk Driving Cases (“Screening devices are used when it is impractical to utilize an evidential breath tester (EBT) (e.g. at roadside or at various work sites)”). The standard evidentiary breath test is conducted after a motorist is arrested and transported to a police station, governmental building, or mobile testing facility where officers can access reliable, evidence-grade breath testing machiy. Brief for Respondent in No. 11618, p. 8, n. 2; National Highway Transportation Safety dmin. (NHTS), Berning et al., Refusal of Intoxication Test- ing: Report to Congress and n. 5 Transporting the motorist to the equipment site is not the only potential delay in the process, however. Officers must also observe the subject for 15 to 20 minutes to ensure that “residual mouth alcohol,” which can inflate results and expose the test to an evidentiary challenge at trial, has dissipated and that the subject has not inserted any food or drink into his mouth.5 In many States, includ- ing Minnesota, officers must then give the motorist a window of time within which to contact an attorney before administering a test.6 Finally, if a breath test machine is —————— 5 See NHTS and International ssn. of Chiefs of Police, DWI Detec- tion and Standardized Field Sobriety Testing Participant Guide, Session 7, p. 20 6 See Minn. Stat. subd. 2() (201) (“[T]he person has the right to consult with an attorney, but this right is limited to the extent that it cannot unreasonably delay administration of the test”); see also Kuhn v. Commissio of Public Safety, (Minn. pp. 12) (finding 2 minutes insufficient time to contact an Cite as: 57 U. S. (2016) 11 Opinion of SOTOMYOR, J. not already active, the police officer must set it up. North Dakota’s Intoxilyzer 8000 machine can take as long as 30 minutes to “warm-up.”7 Because of these necessary steps, the standard breath test is conducted well after an arrest is effectuated. The Minnesota Court of ppeals has explained that nearly all breath tests “involve a time lag of 5 minutes to two hours.” 2 N.W.2d 67, (Minn. pp. 188); see also N.W.2d 3, (Minn. pp. 186). Both North Dakota and Minnesota give police a 2-hour period from the time the motorist was pulled over within which to administer a breath test. N. D. Cent. Code nn. 200.1(1) ; Minn. Stat. subd. 1(5) (201).8 During this built-in window, police can seek warrants. That is particularly true in light of “advances” in technol- ogy that now permit “the more expeditious processing of warrant applications.” 56 U. S., at and n. (slip op., 112, and n. ) (describing increased availability of telephonic warrants); Riley, 573 U. S., at (slip op., at 26) (describing jurisdictions that have adopted an e-mail warrant system that takes less than 15 minutes); Minn. Rules Crim. Proc. 33.05, 36.0136.08 (allowing telephonic warrants); N. D. Rules Crim. Proc. 1(c)(2)(3) (same). Moreover, counsel for North Dakota explained at oral argument that —————— attorney before being required to submit to a test). 7 See Office of ttorney Geal, Crime Lab. Div., Chemical Test Training Student Manual, Fall 2011Spring 2012, p. 13 8 Many tests are conducted at the outer boundaries of that window. See, e.g., Israel v. Commissio of Public Safety, (Minn. pp. 187) (57 minute poststop delay); Mosher v. Commissio of Public Safety, WL 363 (11 minute postarrest delay); Johnson v. Commissio of Public Safety, 00 N.W.2d 15 (Minn. pp. 187) (6 minute postarrest delay); Scheiterlein v. Commissio of Public Safety, (Minn. pp., July 7, 201) (111 minute poststop delay). 12 BIRCHFIELD v. NORTH DKOT Opinion of SOTOMYOR, J. the State uses a typical “on-call” system in which some judges are available even during off-duty times. See Tr. of Oral rg. 2. Where “an officer can secure a warrant while” the motorist is being transported and the test is being pre- pared, this Court has said that “there would be no plausi- ble justification for an exception to the warrant require- ment.” 56 U. S., at (slip op., 0). Neither the Court nor the States provide any evidence to suggest that, in the normal course of affairs, obtaining a warrant and conducting a breath test will exceed the allotted 2- hour window. Third, the Court and the States cite a governmental interest in minimizing the costs of gathering evidence of drunk driving. But neither has demonstrated that requir- ing police to obtain warrants for breath tests would impose a sufficiently significant burden on state resources to justify the elimination of the Fourth mendment’s war- rant requirement. The Court notes that North Dakota has 82 judges and magistrate judges who are authorized to issue warrants. See ante, at 27-28. Because North Da- kota has roughly 7,000 drunk-driving arrests annually, the Court concludes that if police were required to obtain warrants “for every search incident to arrest that does not involve exigent circumstances, the courts would be swamped.” nte, at 27. That conclusion relies on inflated numbers and unsupported inferences. ssuming that North Dakota police officers do not ob- —————— Counsel for North Dakota represented at oral argument that in “larger jurisdictions” it “takes about a half an hour” to obtain a war- rant. Tr. of Oral rg. 2. Counsel said that it is sometimes “harder to get somebody on the phone” in rural jurisdictions, but even if it took twice as long, the process of obtaining a warrant would be unlikely to take longer than the inherent delays in preparing a motorist for testing and would be particularly unlikely to reach beyond the 2-hour window within which officers can conduct the test. Cite as: 57 U. S. (2016) 13 Opinion of SOTOMYOR, J. tain warrants for any drunk-driving arrests today, and assuming that they would need to obtain a warrant for every drunk-driving arrest tomorrow, each of the State’s 82 judges and magistrate judges would need to issue fewer than two extra warrants per week.10 Minnesota has nearly the same ratio of judges to drunk-driving arrests, and so would face roughly the same burden.11 These back-of-the- envelope numbers suggest that the burden of obtaining a warrant before conducting a breath test would be small in both States. But even these numbers overstate the burden by a sig- nificant degree. States only need to obtain warrants for drivers who refuse testing and a significant majority of drivers voluntarily consent to breath tests, even in States without criminal penalties for refusal. In North Dakota, only 21% of people refuse breath tests and in Minnesota, only 12% refuse. NHTS, E. Namuswe, H. Coleman, & Berning, Breath Test Refusal Rates in the United States 2011 Update 2 (No. 811881 201). Including States that impose only civil penalties for refusal, the average refusal rate is slightly higher at 2%. Say that North Dakota’s and Minnesota’s refusal rates rise to double the mean, or 8%. Each of their judges and magistrate judges would need to issue fewer than one extra warrant a —————— 10 Seven thousand annual arrests divided by 82 judges and magis- trate judges is 85. extra warrants per judge and magistrate judge per year. nd 85. divided by 52 weeks is 1.6 extra warrants per judge and magistrate judge per week. 11 Minnesota has about 25,000 drunk-driving incidents each year. Minn. Dept. of Public Safety, Office of Traffic Safety, Minn. Impaired Driving Facts 201, p. 2 In Minnesota, all judges not exercising probate jurisdiction can issue warrants. (200). But the state district court judges appear to do the lion’s share of that work. So, conservatively counting only those judges, the State has 280 judges that can issue warrants. Minnesota Judicial Branch, Report to the Community 23 Similar to North Dakota, that amounts to 1.72 extra warrants per judge per week. 1 BIRCHFIELD v. NORTH DKOT Opinion of SOTOMYOR, J. week.12 That bears repeating: The Court finds a categori- cal exception to the warrant requirement because each of a State’s judges and magistrate judges would need to issue less than one extra warrant a week. Fourth, the Court alludes to the need to collect evidence conveniently. But mere convenience in investigating drunk driving cannot itself justify an exception to the warrant requirement. ll of this Court’s postarrest excep- tions to the warrant requirement require a law enforce- ment interest separate from criminal investigation. The Court’s justification for the search incident to arrest rule is “the officer’s safety” and the prevention of evidence “concealment or destruction.” 35 U.S., The Court’s justification for the booking exception, which allows police to obtain fingerprints and DN without a warrant while booking an arrestee at the police station, is the administrative need for identification. See Maryland v. 56 U. S. (slip op., 112). The Court’s justification for the inventory search excep- tion, which allows police to inventory the items in the arrestee’s personal possession and car, is the need to “protect an ow’s property while it is in the custody of the police, to insure against claims of lost, stolen, or van- dalized property, and to guard the police from danger.” 7 U.S. 367, 2 (187). This Court has never said that mere convenience in gathering evidence justifies an exception to the warrant requirement. See 5 U.S. 1, (10) (suppressing evidence where supposed “inventory” search —————— 12 Because each of North Dakota’s judges and magistrate judges would have to issue an extra 1.6 warrants per week assuming a 100% refusal rate, see 3, nn. 1011, they would have to issue an additional 0.7 per week assuming a 8% refusal rate. djusting for the same conservatively high refusal rate, Minnesota would go from 1.72 additional warrants per judge per week to just 0.82. Cite as: 57 U. S. (2016) 15 Opinion of SOTOMYOR, J. was done without standardized criteria, suggesting in- stead “ ‘a purposeful and geal means of discovering evidence of crime’ ”). If the simple collection of evidence justifies an exception to the warrant requirement even where a warrant could be easily obtained, exceptions would become the rule. Finally, as a geal matter, the States have ample tools to force compliance with lawfully obtained warrants. This Court has never cast doubt on the States’ ability to impose criminal penalties for obstructing a search authorized by a lawfully obtained warrant. No resort to violent compli- ance would be necessary to compel a test. If a police of- ficer obtains a warrant to conduct a breath test, citizens can be subjected to serious penalties for obstruction of justice if they decline to cooperate with the test. This Court has already taken the weighty step of char- acterizing breath tests as “searches” for Fourth mend- ment purposes. See U.S., at 6166. That is because the typical breath test requires the subject to actively blow alveolar (or “deep lung”) air into the ma- chine. lthough the process of physically blowing into the machine can be completed in as little as a few minutes, the end-to-end process can be significantly longer. The person administering the test must calibrate the machine, collect at least two separate samples from the arrestee, change the mouthpiece and reset the machine between each, and conduct any additional testing indicated by disparities between the two tests.13 lthough some searches are certainly more invasive than breath tests, this Court cannot do justice to their status as Fourth mendment “searches” if exaggerated time pressures, mere convenience in collecting evidence, and the “burden” —————— 13 See Office of ttorney Geal, Crime Lab. Div., pproved Method To Conduct Breath Tests With the Intoxilyzer 8000 (BRS001), pp. 6, 8 (2012). 16 BIRCHFIELD v. NORTH DKOT Opinion of SOTOMYOR, J. of asking judges to issue an extra couple of warrants per month are costs so high as to render reasonable a search without a warrant.1 The Fourth mendment becomes an empty promise of protecting citizens from unreasonable searches. B fter evaluating the governmental and privacy interests at stake here, the final step is to determine whether any situations in which warrants would interfere with the States’ legitimate governmental interests should be ac- commodated through a case-by-case or categorical excep- tion to the warrant requirement. s shown, because there are so many circumstances in which obtaining a warrant will not delay the administra- tion of a breath test or otherwise compromise any govern- mental interest cited by the States, it should be clear that allowing a categorical exception to the warrant require- ment is a “considerable overgealization” here. 56 U. S., at (slip op., 0). s this Court concluded in Riley and any unusual issues that —————— 1 In weighing the governmental interests at stake here, the Court also downplays the “benefits” that warrants provide for breath tests. Because this Court has said unequivocally that warrants are the usual safeguard against unreasonable searches, see 38 U.S. 37, the legal relevance of this discussion is not clear. In any event, the Court is wrong to conclude that warrants provide little benefit here. The Court says that any warrants for breath tests would be issued based on the “characterization” of the police officer, which a “magistrate would be in a poor position to challenge.” nte, at 2. Virtually all warrants will rely to some degree on an officer’s own perception. The very purpose of warrants is to have a neutral arbiter determine whether inferences drawn from officers’ perceptions and circumstantial evidence are sufficient to justify a search. Regardless of the particulars, the Court’s mode of analysis is a dangerous road to venture down. Historically, our default has been that warrants are required. This part of the Court’s argument instead suggests, without precedent, that their value now has to be proven. Cite as: 57 U. S. (2016) Opinion of SOTOMYOR, J. do arise can “better [be] addressed through considera- tion of case-specific exceptions to the warrant require- ment.” Riley, 573 U. S., at (slip op., 1); see also 56 U. S., at (slip op., 5) (opinion of SOTOMYOR, J.). Without even considering the comparative effectiveness of case-by-case and categorical exceptions, the Court reaches for the categorical search-incident-to-arrest excep- tion and enshrines it for all breath tests. The majority apparently assumes that any postarrest search should be analyzed under the search-incident-to-arrest doctrine. See ante, 6 (“In the three cases now before us, the drivers were searched or told that they were required to submit to a search after being placed under arrest for drunk driving. We therefore consider how the search-incident-to-arrest doctrine applies to breath and blood tests incident to such arrests”). But, as we explained earlier, police officers may want to conduct a range of different searches after placing a per- son under arrest. Each of those searches must be sepa- rately analyzed for Fourth mendment compliance. Two narrow types of postarrest searches are analyzed together under the rubric of our search-incident-to-arrest doctrine: Searches to disarm arrestees who could pose a danger before a warrant is obtained and searches to find evidence arrestees have an incentive to destroy before a warrant is obtained. 35 U.S., Other forms of postarrest searches are analyzed differently because they present needs that require more tailored exceptions to the warrant requirement. See at 5 (discussing postarrest application of the “exigency” exception); see also 31 (discussing postarrest booking and inven- tory exceptions). The fact that a person is under arrest does not tell us which of these warrant exceptions should apply to a par- ticular kind of postarrest search. The way to analyze 18 BIRCHFIELD v. NORTH DKOT Opinion of SOTOMYOR, J. which exception, if any, is appropriate is to ask whether the exception best addresses the nature of the postarrest search and the needs it fulfills. Yet the majority never explains why the search-incident-to-arrest framework—its justifications, applications, and categorical scope—is best suited to breath tests. To the contrary, the search-incident-to-arrest exception is particularly ill suited to breath tests. To the extent the Court discusses any fit between breath tests and the rationales underlying the search-incident-to-arrest excep- tion, it says that evidence preservation is one of the core values served by the exception and worries that “evidence may be lost” if breath tests are not conducted. nte, 1. But, of course, the search-incident-to-arrest exception is concerned with evidence destruction only insofar as that destruction would occur before a warrant could be sought. nd breath tests are not, except in rare circumstances, conducted at the time of arrest, before a warrant can be obtained, but at a separate location 0 to 120 minutes after an arrest is effectuated. That alone should be reason to reject an exception forged to address the immediate needs of arrests. The exception’s categorical reach makes it even less suitable here. The search-incident-to-arrest exception is applied categorically precisely because the needs it ad- dresses could arise in every arrest. 1 U.S., at 236. But the government’s need to conduct a breath test is present only in arrests for drunk driving. nd the asserted need to conduct a breath test without a warrant arises only when a warrant cannot be obtained during the signif- icant built-in delay between arrest and testing. The condi- tions that require warrantless breath searches, in short, are highly situational and defy the logical underpinnings of the search-incident-to-arrest exception and its categori- cal application. Cite as: 57 U. S. (2016) 1 Opinion of SOTOMYOR, J. * * * In Maryland v. this Court dispensed with the warrant requirement and allowed DN searches following an arrest. But there, it at least attempted to justify the search using the booking exception’s interest in identifying arrestees. 56 U. S., at (slip op., 118); at (slip op., at 6) (Scalia, J., dissenting). Here, the Court lacks even the pretense of attempting to situate breath searches within the narrow and weighty law en- forcement needs that have historically justified the limited use of warrantless searches. I fear that if the Court con- tinues down this road, the Fourth mendment’s warrant requirement will become nothing more than a suggestion. Cite as: 57 U. S. (2016) 1 THOMS, J., concurring Opinionin ofpart and,dissenting THOMS J. in part SUPREME COURT OF THE UNITED STTES Nos. 1168, 1170, and 11507 DNNY BIRCHFIELD, PETITIONER 1168 v. NORTH DKOT; ON WRIT OF CERTIORRI TO THE SUPREME COURT OF NORTH DKOT WILLIM ROBERT BERNRD, JR., PETITIONER 1170 v. MINNESOT; ND ON WRIT OF CERTIORRI TO THE SUPREME COURT OF MINNESOT STEVE MICHEL BEYLUND, PETITIONER 11507 v. GRNT LEVI, DIRECTOR, NORTH DKOT DEPRTMENT OF TRNSPORTTION ON WRIT OF CERTIORRI TO THE SUPREME COURT OF NORTH DKOT [June 23, 2016] JUSTICE THOMS, concurring in judgment in part and dissenting in part. The compromise the Court reaches today is not a good one. By deciding that some (but not all) warrantless tests revealing the blood alcohol concentration (BC) of an arrested driver are constitutional, the Court contorts the search-incident-to-arrest exception to the Fourth mend- ment’s warrant requirement. The far simpler answer to 2 BIRCHFIELD v. NORTH DKOT THOMS, J., concurring Opinionin ofpart and,dissenting THOMS J. in part the question presented is the one rejected in Missouri v. 56 U. S. Here, the tests revealing the BC of a driver suspected of driving drunk are consti- tutional under the exigent-circumstances exception to the warrant requirement. at (THOMS, J., dis- senting) (slip op., ). I Today’s decision chips away at a well-established excep- tion to the warrant requirement. Until recently, we have admonished that “[a] police officer’s determination as to how and where to search the person of a suspect whom he has arrested is necessarily a quick ad hoc judgment which the Fourth mendment does not require to be broken down in each instance into an analysis of each step in the search.” United States v. Under our precedents, a search incident to lawful arrest “require[d] no additional justification.” Not until the recent decision in Riley v. California, 573 U. S. (201), did the Court begin to retreat from this cate- gorical approach because it feared that the search at issue, the “search of the information on a cell phone,” bore “little resemblance to the type of brief physical search” contem- plated by this Court’s past search-incident-to-arrest deci- sions. at (slip op., 0). I joined Riley, however, because the Court resisted the temptation to permit searches of some kinds of cell-phone data and not others, at (slip op., at 2325), and instead asked more geally whether that entire “category of effects” was searchable without a warrant, at (slip op., 0). Today’s decision begins where Riley left off. The Court purports to apply but further departs from its categorical approach by holding that warrantless breath tests to prevent the destruction of BC evidence are con- stitutional searches incident to arrest, but warrantless blood tests are not. nte, 5 (“Because breath tests are Cite as: 57 U. S. (2016) 3 THOMS, J., concurring Opinionin ofpart and,dissenting THOMS J. in part significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be adminis- tered as a search incident to a lawful arrest for drunk driving”). That hairsplitting makes little sense. Either the search-incident-to-arrest exception permits bodily searches to prevent the destruction of BC evidence, or it does not. The Court justifies its result—an arbitrary line in the sand between blood and breath tests—by balancing the invasiveness of the particular type of search against the government’s reasons for the search. nte, at 2036. Such case-by-case balancing is bad for the People, who “through ratification, have already weighed the policy tradeoffs that constitutional rights entail.” Luis v. United States, 578 U. S. (2016) (THOMS, J., concurring in judgment) (slip op., 0); see also 51 U.S. 36, 8 (200). It is also bad for law enforcement officers, who depend on predictable rules to do their job, as Members of this Court have exhorted in the past. See rizona v. Gant, 35 (200) (LITO, J., dissenting); see also 63 (faulting the Court for “leav[ing] the law relating to searches incident to arrest in a confused and unstable state”). Today’s application of the search-incident-to-arrest exception is bound to cause confusion in the lower courts. The Court’s choice to allow some (but not all) BC searches is undeniably appealing, for it both reins in the perni- cious problem of drunk driving and also purports to pre- serve some Fourth mendment protections. But that compromise has little support under this Court’s existing precedents. The better (and far simpler) way to resolve these cases is by applying the per se rule that I proposed in BIRCHFIELD v. NORTH DKOT THOMS, J., concurring Opinionin ofpart and,dissenting THOMS J. in part Under that approach, both warrantless breath and blood tests are constitutional because “the natural metaboliza- tion of [BC] creates an exigency once police have proba- ble cause to believe the driver is drunk. It naturally fol- lows that police may conduct a search in these circumstances.” 56 U. S., at (dissenting opinion) (slip op., ). The Court in rejected that bright-line rule and instead adopted a totality-of-the-circumstances test exam- ining whether the facts of a particular case presented exigent circumstances justifying a warrantless search. at (slip op., ). The Court ruled that “the natu- ral dissipation of alcohol in the blood” could not “categori- cally” create an “exigency” in every case. at (slip op., 3). The destruction of “BC evidence from a drunk-driving suspect” that “naturally dissipates over time in a gradual and relatively predictable man,” according to the Court, was qualitatively different from the destruction of evidence in “circumstances in which the suspect has control over easily disposable evidence.” at (slip op., 0). Today’s decision rejects ’s arbitrary distinction between the destruction of evidence geally and the destruction of BC evidence. But only for searches inci- dent to arrest. nte, The Court declares that such a distinction “between an arrestee’s active destruc- tion of evidence and the loss of evidence due to a natural process makes little sense.” nte, 1. I agree. See at (THOMS, J., dissenting) (slip op., 6). But it also “makes little sense” for the Court to reject ’s arbitrary distinction only for searches incident to arrest and not also for exigent-circumstances searches when both are justified by identical concerns about the destruction of the same evidence. ’s distinction is no less arbitrary for searches justified by exigent circumstances than those justified by search inci- Cite as: 57 U. S. (2016) 5 THOMS, J., concurring Opinionin ofpart and,dissenting THOMS J. in part dent to arrest. The Court was wrong in and today’s compro- mise is perhaps an inevitable consequence of that error. Both searches contemplated by the state laws at issue in these cases would be constitutional under the exigent- circumstances exception to the warrant requirement. I respectfully concur in the judgment in part and dissent in part

per_curiam

per_curiam

Bush v. Gore

2000-12-12

https://www.courtlistener.com/opinion/118395/bush-v-gore/

https://www.courtlistener.com/api/rest/v3/clusters/118395/

2000-009

On December 8, 2000, the Supreme Court of Florida ordered that the Circuit Court of Leon County tabulate by hand 9,000 ballots in Miami-Dade County. It also ordered the inclusion in the certified vote totals of 215 votes identified in Palm Beach County and 168 votes identified in Miami-Dade County for Vice President Albert Gore, Jr., and Senator Joseph Lieberman, Democratic candidates for President and Vice President. The State Supreme Court noted that petitioner George W. Bush asserted that the net gain for Vice President Gore in Palm Beach County was 176 votes, and directed the Circuit Court to resolve that dispute on remand. Gore v. Harris, 772 So. 2d 1243, 1248, n. 6. The court further held that relief would require manual recounts in all Florida counties where so-called "undervotes" had not been subject to manual tabulation. The court ordered all manual recounts to begin at once. Governor Bush and Richard Cheney, Republican candidates for President and Vice President, filed an emergency application for a stay of this mandate. On December 9, we granted the application, treated the application as a petition for a writ of certiorari, and granted certiorari. Post, p. 1046. The proceedings leading to the present controversy are discussed in some detail in our opinion in Bush v. Palm Beach County Canvassing Bd., ante, p. 70 (per curiam) (Bush I). On November 8, 2000, the day following the Presidential election, the Florida Division of Elections reported that petitioner Bush had received 2,909,135 votes, and respondent Gore had received 2,907,351 votes, a margin of *101 1,784 for Governor Bush. Because Governor Bush's margin of victory was less than "one-half of a percent . . . of the votes cast," an automatic machine recount was conducted under § 102.141(4) of the Florida Election Code, the results of which showed Governor Bush still winning the race but by a diminished margin. Vice President Gore then sought manual recounts in Volusia, Palm Beach, Broward, and Miami-Dade Counties, pursuant to Florida's election protest provisions. Fla. Stat. Ann. § 102.166 (Supp. 2001). A dispute arose concerning the deadline for local county canvassing boards to submit their returns to the Secretary of State (Secretary). The Secretary declined to waive the November 14 deadline imposed by statute. §§ 102.111, 102.112. The Florida Supreme Court, however, set the deadline at November 26. We granted certiorari and vacated the Florida Supreme Court's decision, finding considerable uncertainty as to the grounds on which it was based. Bush I, ante, at 78. On December 11, the Florida Supreme Court issued a decision on remand reinstating that date. Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1273, 1290. On November 26, the Florida Elections Canvassing Commission certified the results of the election and declared Governor Bush the winner of Florida's 25 electoral votes. On November 27, Vice President Gore, pursuant to Florida's contest provisions, filed a complaint in Leon County Circuit Court contesting the certification. Fla. Stat. Ann. § 102.168 (Supp. 2001). He sought relief pursuant to § 102.168(3)(c), which provides that "[r]eceipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election" shall be grounds for a contest. The Circuit Court denied relief, stating that Vice President Gore failed to meet his burden of proof. He appealed to the First District Court of Appeal, which certified the matter to the Florida Supreme Court. Accepting jurisdiction, the Florida Supreme Court affirmed in part and reversed in part. Gore v. Harris, 772 *102 So. 2d 1243 (2000). The court held that the Circuit Court had been correct to reject Vice President Gore's challenge to the results certified in Nassau County and his challenge to the Palm Beach County Canvassing Board's determination that 3,300 ballots cast in that county were not, in the statutory phrase, "legal votes." The Supreme Court held that Vice President Gore had satisfied his burden of proof under § 102.168(3)(c) with respect to his challenge to Miami-Dade County's failure to tabulate, by manual count, 9,000 ballots on which the machines had failed to detect a vote for President ("undervotes"). Id., at 1256. Noting the closeness of the election, the court explained that "[o]n this record, there can be no question that there are legal votes within the 9,000 uncounted votes sufficient to place the results of this election in doubt." Id., at 1261. A "legal vote," as determined by the Supreme Court, is "one in which there is a `clear indication of the intent of the voter.' " Id., at 1257. The court therefore ordered a hand recount of the 9,000 ballots in Miami-Dade County. Observing that the contest provisions vest broad discretion in the circuit judge to "provide any relief appropriate under such circumstances," § 102.168(8), the Supreme Court further held that the Circuit Court could order "the Supervisor of Elections and the Canvassing Boards, as well as the necessary public officials, in all counties that have not conducted a manual recount or tabulation of the undervotes . . . to do so forthwith, said tabulation to take place in the individual counties where the ballots are located." Id., at 1262. The Supreme Court also determined that Palm Beach County and Miami-Dade County, in their earlier manual recounts, had identified a net gain of 215 and 168 legal votes, respectively, for Vice President Gore. Id., at 1260. Rejecting the Circuit Court's conclusion that Palm Beach County lacked the authority to include the 215 net votes submitted *103 past the November 26 deadline, the Supreme Court explained that the deadline was not intended to exclude votes identified after that date through ongoing manual recounts. As to Miami-Dade County, the court concluded that although the 168 votes identified were the result of a partial recount, they were "legal votes [that] could change the outcome of the election." Ibid. The Supreme Court therefore directed the Circuit Court to include those totals in the certified results, subject to resolution of the actual vote total from the Miami-Dade partial recount. The petition presents the following questions: whether the Florida Supreme Court established new standards for resolving Presidential election contests, thereby violating Art. II, § 1, cl. 2, of the United States Constitution and failing to comply with 3 U.S. C. § 5, and whether the use of standardless manual recounts violates the Equal Protection and Due Process Clauses. With respect to the equal protection question, we find a violation of the Equal Protection Clause. II A The closeness of this election, and the multitude of legal challenges which have followed in its wake, have brought into sharp focus a common, if heretofore unnoticed, phenomenon. Nationwide statistics reveal that an estimated 2% of ballots cast do not register a vote for President for whatever reason, including deliberately choosing no candidate at all or some voter error, such as voting for two candidates or insufficiently marking a ballot. See Ho, More Than 2M Ballots Uncounted, AP Online (Nov. 28, 2000); Kelley, Balloting Problems Not Rare But Only in a Very Close Election Do Mistakes and Mismarking Make a Difference, Omaha World-Herald (Nov. 15, 2000). In certifying election results, the votes eligible for inclusion in the certification are the votes meeting the properly established legal requirements. *104 This case has shown that punchcard balloting machines can produce an unfortunate number of ballots which are not punched in a clean, complete way by the voter. After the current counting, it is likely legislative bodies nationwide will examine ways to improve the mechanisms and machinery for voting. B The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college. U. S. Const., Art. II, § 1. This is the source for the statement in McPherson v. Blacker, 146 U.S. 1, 35 (1892), that the state legislature's power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by state legislatures in several States for many years after the framing of our Constitution. Id., at 28-33. History has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors. When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. See id., at 35 ("`[T]here is no doubt of the right of the legislature to resume the power at any time, for it can neither be taken away nor abdicated' ") (quoting S. Rep. No. 395, 43d Cong., 1st Sess., 9 (1874)). The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that *105 of another. See, e. g., Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665 (1966) ("[O]nce the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment"). It must be remembered that "the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise." Reynolds v. Sims, 377 U.S. 533, 555 (1964). There is no difference between the two sides of the present controversy on these basic propositions. Respondents say that the very purpose of vindicating the right to vote justifies the recount procedures now at issue. The question before us, however, is whether the recount procedures the Florida Supreme Court has adopted are consistent with its obligation to avoid arbitrary and disparate treatment of the members of its electorate. Much of the controversy seems to revolve around ballot cards designed to be perforated by a stylus but which, either through error or deliberate omission, have not been perforated with sufficient precision for a machine to register the perforations. In some cases a piece of the card—a chad—is hanging, say, by two corners. In other cases there is no separation at all, just an indentation. The Florida Supreme Court has ordered that the intent of the voter be discerned from such ballots. For purposes of resolving the equal protection challenge, it is not necessary to decide whether the Florida Supreme Court had the authority under the legislative scheme for resolving election disputes to define what a legal vote is and to mandate a manual recount implementing that definition. The recount mechanisms implemented in response to the decisions of the Florida Supreme Court do not satisfy the minimum requirement for nonarbitrary treatment of voters necessary to secure the fundamental right. Florida's basic command for the count of legally cast votes is to consider the "intent of *106 the voter." 772 So. 2d, at 1262. This is unobjectionable as an abstract proposition and a starting principle. The problem inheres in the absence of specific standards to ensure its equal application. The formulation of uniform rules to determine intent based on these recurring circumstances is practicable and, we conclude, necessary. The law does not refrain from searching for the intent of the actor in a multitude of circumstances; and in some cases the general command to ascertain intent is not susceptible to much further refinement. In this instance, however, the question is not whether to believe a witness but how to interpret the marks or holes or scratches on an inanimate object, a piece of cardboard or paper which, it is said, might not have registered as a vote during the machine count. The factfinder confronts a thing, not a person. The search for intent can be confined by specific rules designed to ensure uniform treatment. The want of those rules here has led to unequal evaluation of ballots in various respects. See id., at 1267 (Wells, C. J., dissenting) ("Should a county canvassing board count or not count a `dimpled chad' where the voter is able to successfully dislodge the chad in every other contest on that ballot? Here, the county canvassing boards disagree"). As seems to have been acknowledged at oral argument, the standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another. The record provides some examples. A monitor in Miami-Dade County testified at trial that he observed that three members of the county canvassing board applied different standards in defining a legal vote. 3 Tr. 497, 499 (Dec. 3, 2000). And testimony at trial also revealed that at least one county changed its evaluative standards during the counting process. Palm Beach County, for example, began the process with a 1990 guideline which precluded counting completely attached chads, switched to a rule that considered *107 a vote to be legal if any light could be seen through a chad, changed back to the 1990 rule, and then abandoned any pretense of a per se rule, only to have a court order that the county consider dimpled chads legal. This is not a process with sufficient guarantees of equal treatment. An early case in our one-person, one-vote jurisprudence arose when a State accorded arbitrary and disparate treatment to voters in its different counties. Gray v. Sanders, 372 U.S. 368 (1963). The Court found a constitutional violation. We relied on these principles in the context of the Presidential selection process in Moore v. Ogilvie, 394 U.S. 814 (1969), where we invalidated a county-based procedure that diluted the influence of citizens in larger counties in the nominating process. There we observed that "[t]he idea that one group can be granted greater voting strength than another is hostile to the one man, one vote basis of our representative government." Id., at 819. The State Supreme Court ratified this uneven treatment. It mandated that the recount totals from two counties, Miami-Dade and Palm Beach, be included in the certified total. The court also appeared to hold sub silentio that the recount totals from Broward County, which were not completed until after the original November 14 certification by the Secretary, were to be considered part of the new certified vote totals even though the county certification was not contested by Vice President Gore. Yet each of the counties used varying standards to determine what was a legal vote. Broward County used a more forgiving standard than Palm Beach County, and uncovered almost three times as many new votes, a result markedly disproportionate to the difference in population between the counties. In addition, the recounts in these three counties were not limited to so-called undervotes but extended to all of the ballots. The distinction has real consequences. A manual recount of all ballots identifies not only those ballots which show no vote but also those which contain more than one, *108 the so-called overvotes. Neither category will be counted by the machine. This is not a trivial concern. At oral argument, respondents estimated there are as many as 110,000 overvotes statewide. As a result, the citizen whose ballot was not read by a machine because he failed to vote for a candidate in a way readable by a machine may still have his vote counted in a manual recount; on the other hand, the citizen who marks two candidates in a way discernible by the machine will not have the same opportunity to have his vote count, even if a manual examination of the ballot would reveal the requisite indicia of intent. Furthermore, the citizen who marks two candidates, only one of which is discernible by the machine, will have his vote counted even though it should have been read as an invalid ballot. The State Supreme Court's inclusion of vote counts based on these variant standards exemplifies concerns with the remedial processes that were under way. That brings the analysis to yet a further equal protection problem. The votes certified by the court included a partial total from one county, Miami-Dade. The Florida Supreme Court's decision thus gives no assurance that the recounts included in a final certification must be complete. Indeed, it is respondents' submission that it would be consistent with the rules of the recount procedures to include whatever partial counts are done by the time of final certification, and we interpret the Florida Supreme Court's decision to permit this. See 772 So. 2d, at 1261-1262, n. 21 (noting "practical difficulties" may control outcome of election, but certifying partial Miami-Dade total nonetheless). This accommodation no doubt results from the truncated contest period established by the Florida Supreme Court in Palm Beach County Canvassing Bd. v. Harris, at respondents' own urging. The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees. *109 In addition to these difficulties the actual process by which the votes were to be counted under the Florida Supreme Court's decision raises further concerns. That order did not specify who would recount the ballots. The county canvassing boards were forced to pull together ad hoc teams of judges from various Circuits who had no previous training in handling and interpreting ballots. Furthermore, while others were permitted to observe, they were prohibited from objecting during the recount. The recount process, in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer. Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities. The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards. When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied. Given the Court's assessment that the recount process underway was probably being conducted in an unconstitutional manner, the Court stayed the order directing the recount so it could hear this case and render an expedited decision. The contest provision, as it was mandated by the State Supreme Court, is not well calculated to sustain the confidence that all citizens must have in the outcome of elections. The State has not shown that its procedures include the necessary safeguards. The problem, for instance, of the estimated 110,000 overvotes has not been *110 addressed, although Chief Justice Wells called attention to the concern in his dissenting opinion. See 772 So. 2d, at 1264, n. 26. Upon due consideration of the difficulties identified to this point, it is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work. It would require not only the adoption (after opportunity for argument) of adequate statewide standards for determining what is a legal vote, and practicable procedures to implement them, but also orderly judicial review of any disputed matters that might arise. In addition, the Secretary has advised that the recount of only a portion of the ballots requires that the vote tabulation equipment be used to screen out undervotes, a function for which the machines were not designed. If a recount of overvotes were also required, perhaps even a second screening would be necessary. Use of the equipment for this purpose, and any new software developed for it,would have to be evaluated for accuracy by the Secretary, as required by Fla. Stat. Ann. § 101.015 (Supp. 2001). The Supreme Court of Florida has said that the legislature intended the State's electors to "participat[e] fully in the federal electoral process," as provided in 3 U.S. C. § 5. 772 So. 2d, at 1289; see also Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1220, 1237 (Fla. 2000). That statute, in turn, requires that any controversy or contest that is designed to lead to a conclusive selection of electors be completed by December 12. That date is upon us, and there is no recount procedure in place under the State Supreme Court's order that comports with minimal constitutional standards. Because it is evident that any recount seeking to meet the December 12 date will be unconstitutional for the reasons we have discussed, we reverse the judgment of the Supreme Court of Florida ordering a recount to proceed. *111 Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy. See post, at 134 (Souter, J., dissenting); post, at 145-146 (Breyer, J., dissenting). The only disagreement is as to the remedy. Because the Florida Supreme Court has said that the Florida Legislature intended to obtain the safe-harbor benefits of 3 U.S. C. § 5, Justice Breyer's proposed remedy—remanding to the Florida Supreme Court for its ordering of a constitutionally proper contest until December 18—contemplates action in violation of the Florida Election Code, and hence could not be part of an "appropriate" order authorized by Fla. Stat. Ann. § 102.168(8) (Supp. 2001). * * * None are more conscious of the vital limits on judicial authority than are the Members of this Court, and none stand more in admiration of the Constitution's design to leave the selection of the President to the people, through their legislatures, and to the political sphere. When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront. The judgment of the Supreme Court of Florida is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. Pursuant to this Court's Rule 45.2, the Clerk is directed to issue the mandate in this case forthwith. It is so ordered.

On December 8, the Supreme Court of Florida ordered that the Circuit Court of Leon County tabulate by hand 9,000 ballots in Miami-Dade County. It also ordered the inclusion in the certified vote totals of 215 votes identified in Palm Beach County and 168 votes identified in Miami-Dade County for Vice President Albert Gore, Jr., and Senator Joseph Lieberman, Democratic candidates for President and Vice President. The State Supreme Court noted that petitioner George W. Bush asserted that the net gain for Vice President Gore in Palm Beach County was 176 votes, and directed the Circuit Court to resolve that dispute on remand. The court further held that relief would require manual recounts in all Florida counties where so-called "undervotes" had not been subject to manual tabulation. The court ordered all manual recounts to begin at once. Governor Bush and Richard Cheney, Republican candidates for President and Vice President, filed an emergency application for a stay of this mandate. On December 9, we granted the application, treated the application as a petition for a writ of certiorari, and granted certiorari. Post, p. 1046. The proceedings leading to the present controversy are discussed in some detail in our opinion in Bush v. Palm Beach County Canvassing Bd., ante, p. 70 (per curiam) (Bush I). On November 8, the day following the Presidential election, the Florida Division of Elections reported that petitioner Bush had received 2,909,1 votes, and respondent Gore had received 2,907,1 votes, a margin of *101 1,784 for Governor Bush. Because Governor Bush's margin of victory was less than "one-half of a percent of the votes cast," an automatic machine recount was conducted under 102.141(4) of the Florida Election Code, the results of which showed Governor Bush still winning the race but by a diminished margin. Vice President Gore then sought manual recounts in Volusia, Palm Beach, Broward, and Miami-Dade Counties, pursuant to Florida's election protest provisions. Fla. Stat. Ann. 102.166 (Supp. 2001). A dispute arose concerning the deadline for local county canvassing boards to submit their returns to the Secretary of State (Secretary). The Secretary declined to waive the November 14 deadline imposed by statute. 102.111, 102.112. The Florida Supreme Court, however, set the deadline at November 26. We granted certiorari and vacated the Florida Supreme Court's decision, finding considerable uncertainty as to the grounds on which it was based. Bush I, ante, at 78. On December 11, the Florida Supreme Court issued a decision on remand reinstating that date. Palm Beach County Canvassing On November 26, the Florida Elections Canvassing Commission certified the results of the election and declared Governor Bush the winner of Florida's 25 electoral votes. On November 27, Vice President Gore, pursuant to Florida's contest provisions, filed a complaint in Leon County Circuit Court contesting the certification. Fla. Stat. Ann. 102.168 (Supp. 2001). He sought relief pursuant to 102.168(3)(c), which provides that "[r]eceipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election" shall be grounds for a contest. The Circuit Court denied relief, stating that Vice President Gore failed to meet his burden of proof. He appealed to the First District Court of Appeal, which certified the matter to the Florida Supreme Court. Accepting jurisdiction, the Florida Supreme Court affirmed in part and reversed in part. 772 * The court held that the Circuit Court had been correct to reject Vice President Gore's challenge to the results certified in Nassau County and his challenge to the Palm Beach County Canvassing Board's determination that 3,300 ballots cast in that county were not, in the statutory phrase, "legal votes." The Supreme Court held that Vice President Gore had satisfied his burden of proof under 102.168(3)(c) with respect to his challenge to Miami-Dade County's failure to tabulate, by manual count, 9,000 ballots on which the machines had failed to detect a vote for President ("undervotes"). Noting the closeness of the election, the court explained that "[o]n this record, there can be no question that there are legal votes within the 9,000 uncounted votes sufficient to place the results of this election in doubt." A "legal vote," as determined by the Supreme Court, is "one in which there is a `clear indication of the intent of the voter.' " The court therefore ordered a hand recount of the 9,000 ballots in Miami-Dade County. Observing that the contest provisions vest broad discretion in the circuit judge to "provide any relief appropriate under such circumstances," 102.168(8), the Supreme Court further held that the Circuit Court could order "the Supervisor of Elections and the Canvassing Boards, as well as the necessary public officials, in all counties that have not conducted a manual recount or tabulation of the undervotes to do so forthwith, said tabulation to take place in the individual counties where the ballots are located." The Supreme Court also determined that Palm Beach County and Miami-Dade County, in their earlier manual recounts, had identified a net gain of 215 and 168 legal votes, respectively, for Vice President Gore. Rejecting the Circuit Court's conclusion that Palm Beach County lacked the authority to include the 215 net votes submitted *103 past the November 26 deadline, the Supreme Court explained that the deadline was not intended to exclude votes identified after that date through ongoing manual recounts. As to Miami-Dade County, the court concluded that although the 168 votes identified were the result of a partial recount, they were "legal votes [that] could change the outcome of the election." The Supreme Court therefore directed the Circuit Court to include those totals in the certified results, subject to resolution of the actual vote total from the Miami-Dade partial recount. The petition presents the following questions: whether the Florida Supreme Court established new standards for resolving Presidential election contests, thereby violating Art. II, 1, cl. 2, of the United States Constitution and failing to comply with 3 U.S. C. 5, and whether the use of standardless manual recounts violates the Equal Protection and Due Process Clauses. With respect to the equal protection question, we find a violation of the Equal Protection Clause. II A The closeness of this election, and the multitude of legal challenges which have followed in its wake, have brought into sharp focus a common, if heretofore unnoticed, phenomenon. Nationwide statistics reveal that an estimated 2% of ballots cast do not register a vote for President for whatever reason, including deliberately choosing no candidate at all or some voter error, such as voting for two candidates or insufficiently marking a ballot. See Ho, More Than 2M Ballots Uncounted, AP Online ; Kelley, Balloting Problems Not Rare But Only in a Very Close Election Do Mistakes and Mismarking Make a Difference, Omaha World-Herald In certifying election results, the votes eligible for inclusion in the certification are the votes meeting the properly established legal requirements. *104 This case has shown that punchcard balloting machines can produce an unfortunate number of ballots which are not punched in a clean, complete way by the voter. After the current counting, it is likely legislative bodies nationwide will examine ways to improve the mechanisms and machinery for voting. B The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college. U. S. Const., Art. II, 1. This is the source for the statement in that the state legislature's power to select the manner for appointing electors is plenary; it may, if it so chooses, select the electors itself, which indeed was the manner used by state legislatures in several States for many years after the framing of our Constitution. History has now favored the voter, and in each of the several States the citizens themselves vote for Presidential electors. When the state legislature vests the right to vote for President in its people, the right to vote as the legislature has prescribed is fundamental; and one source of its fundamental nature lies in the equal weight accorded to each vote and the equal dignity owed to each voter. The State, of course, after granting the franchise in the special context of Article II, can take back the power to appoint electors. See at (quoting S. Rep. No. 395, 43d Cong., 1st Sess., 9 (1874)). The right to vote is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise. Having once granted the right to vote on equal terms, the State may not, by later arbitrary and disparate treatment, value one person's vote over that *105 of another. See, e. g., It must be remembered that "the right of suffrage can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise." There is no difference between the two sides of the present controversy on these basic propositions. Respondents say that the very purpose of vindicating the right to vote justifies the recount procedures now at issue. The question before us, however, is whether the recount procedures the Florida Supreme Court has adopted are consistent with its obligation to avoid arbitrary and disparate treatment of the members of its electorate. Much of the controversy seems to revolve around ballot cards designed to be perforated by a stylus but which, either through error or deliberate omission, have not been perforated with sufficient precision for a machine to register the perforations. In some cases a piece of the card—a chad—is hanging, say, by two corners. In other cases there is no separation at all, just an indentation. The Florida Supreme Court has ordered that the intent of the voter be discerned from such ballots. For purposes of resolving the equal protection challenge, it is not necessary to decide whether the Florida Supreme Court had the authority under the legislative scheme for resolving election disputes to define what a legal vote is and to mandate a manual recount implementing that definition. The recount mechanisms implemented in response to the decisions of the Florida Supreme Court do not satisfy the minimum requirement for nonarbitrary treatment of voters necessary to secure the fundamental right. Florida's basic command for the count of legally cast votes is to consider the "intent of *106 the voter." 772 So. 2d, This is unobjectionable as an abstract proposition and a starting principle. The problem inheres in the absence of specific standards to ensure its equal application. The formulation of uniform rules to determine intent based on these recurring circumstances is practicable and, we conclude, necessary. The law does not refrain from searching for the intent of the actor in a multitude of circumstances; and in some cases the general command to ascertain intent is not susceptible to much further refinement. In this instance, however, the question is not whether to believe a witness but how to interpret the marks or holes or scratches on an inanimate object, a piece of cardboard or paper which, it is said, might not have registered as a vote during the machine count. The factfinder confronts a thing, not a person. The search for intent can be confined by specific rules designed to ensure uniform treatment. The want of those rules here has led to unequal evaluation of ballots in various respects. See ("Should a county canvassing board count or not count a `dimpled chad' where the voter is able to successfully dislodge the chad in every other contest on that ballot? Here, the county canvassing boards disagree"). As seems to have been acknowledged at oral argument, the standards for accepting or rejecting contested ballots might vary not only from county to county but indeed within a single county from one recount team to another. The record provides some examples. A monitor in Miami-Dade County testified at trial that he observed that three members of the county canvassing board applied different standards in defining a legal vote. 3 Tr. 497, 499 And testimony at trial also revealed that at least one county changed its evaluative standards during the counting process. Palm Beach County, for example, began the process with a 1990 guideline which precluded counting completely attached chads, switched to a rule that considered *107 a vote to be legal if any light could be seen through a chad, changed back to the 1990 rule, and then abandoned any pretense of a per se rule, only to have a court order that the county consider dimpled chads legal. This is not a process with sufficient guarantees of equal treatment. An early case in our one-person, one-vote jurisprudence arose when a State accorded arbitrary and disparate treatment to voters in its different counties. The Court found a constitutional violation. We relied on these principles in the context of the Presidential selection process in where we invalidated a county-based procedure that diluted the influence of citizens in larger counties in the nominating process. There we observed that "[t]he idea that one group can be granted greater voting strength than another is hostile to the one man, one vote basis of our representative government." The State Supreme Court ratified this uneven treatment. It mandated that the recount totals from two counties, Miami-Dade and Palm Beach, be included in the certified total. The court also appeared to hold sub silentio that the recount totals from Broward County, which were not completed until after the original November 14 certification by the Secretary, were to be considered part of the new certified vote totals even though the county certification was not contested by Vice President Gore. Yet each of the counties used varying standards to determine what was a legal vote. Broward County used a more forgiving standard than Palm Beach County, and uncovered almost three times as many new votes, a result markedly disproportionate to the difference in population between the counties. In addition, the recounts in these three counties were not limited to so-called undervotes but extended to all of the ballots. The distinction has real consequences. A manual recount of all ballots identifies not only those ballots which show no vote but also those which contain more than one, *108 the so-called overvotes. Neither category will be counted by the machine. This is not a trivial concern. At oral argument, respondents estimated there are as many as 110,000 overvotes statewide. As a result, the citizen whose ballot was not read by a machine because he failed to vote for a candidate in a way readable by a machine may still have his vote counted in a manual recount; on the other hand, the citizen who marks two candidates in a way discernible by the machine will not have the same opportunity to have his vote count, even if a manual examination of the ballot would reveal the requisite indicia of intent. Furthermore, the citizen who marks two candidates, only one of which is discernible by the machine, will have his vote counted even though it should have been read as an invalid ballot. The State Supreme Court's inclusion of vote counts based on these variant standards exemplifies concerns with the remedial processes that were under way. That brings the analysis to yet a further equal protection problem. The votes certified by the court included a partial total from one county, Miami-Dade. The Florida Supreme Court's decision thus gives no assurance that the recounts included in a final certification must be complete. Indeed, it is respondents' submission that it would be consistent with the rules of the recount procedures to include whatever partial counts are done by the time of final certification, and we interpret the Florida Supreme Court's decision to permit this. See 772 So. 2d, -1262, n. 21 This accommodation no doubt results from the truncated contest period established by the Florida Supreme Court in Palm Beach County Canvassing at respondents' own urging. The press of time does not diminish the constitutional concern. A desire for speed is not a general excuse for ignoring equal protection guarantees. *109 In addition to these difficulties the actual process by which the votes were to be counted under the Florida Supreme Court's decision raises further concerns. That order did not specify who would recount the ballots. The county canvassing boards were forced to pull together ad hoc teams of judges from various Circuits who had no previous training in handling and interpreting ballots. Furthermore, while others were permitted to observe, they were prohibited from objecting during the recount. The recount process, in its features here described, is inconsistent with the minimum procedures necessary to protect the fundamental right of each voter in the special instance of a statewide recount under the authority of a single state judicial officer. Our consideration is limited to the present circumstances, for the problem of equal protection in election processes generally presents many complexities. The question before the Court is not whether local entities, in the exercise of their expertise, may develop different systems for implementing elections. Instead, we are presented with a situation where a state court with the power to assure uniformity has ordered a statewide recount with minimal procedural safeguards. When a court orders a statewide remedy, there must be at least some assurance that the rudimentary requirements of equal treatment and fundamental fairness are satisfied. Given the Court's assessment that the recount process underway was probably being conducted in an unconstitutional manner, the Court stayed the order directing the recount so it could hear this case and render an expedited decision. The contest provision, as it was mandated by the State Supreme Court, is not well calculated to sustain the confidence that all citizens must have in the outcome of elections. The State has not shown that its procedures include the necessary safeguards. The problem, for instance, of the estimated 110,000 overvotes has not been *110 addressed, although Chief Justice Wells called attention to the concern in his dissenting opinion. See n. 26. Upon due consideration of the difficulties identified to this point, it is obvious that the recount cannot be conducted in compliance with the requirements of equal protection and due process without substantial additional work. It would require not only the adoption (after opportunity for argument) of adequate statewide standards for determining what is a legal vote, and practicable procedures to implement them, but also orderly judicial review of any disputed matters that might arise. In addition, the Secretary has advised that the recount of only a portion of the ballots requires that the vote tabulation equipment be used to screen out undervotes, a function for which the machines were not designed. If a recount of overvotes were also required, perhaps even a second screening would be necessary. Use of the equipment for this purpose, and any new software developed for it,would have to be evaluated for accuracy by the Secretary, as required by Fla. Stat. Ann. 101.015 (Supp. 2001). The Supreme Court of Florida has said that the legislature intended the State's electors to "participat[e] fully in the federal electoral process," as provided in 3 U.S. C. ; see also Palm Beach County Canvassing That statute, in turn, requires that any controversy or contest that is designed to lead to a conclusive selection of electors be completed by December 12. That date is upon us, and there is no recount procedure in place under the State Supreme Court's order that comports with minimal constitutional standards. Because it is evident that any recount seeking to meet the December 12 date will be unconstitutional for the reasons we have discussed, we reverse the judgment of the Supreme Court of Florida ordering a recount to proceed. *111 Seven Justices of the Court agree that there are constitutional problems with the recount ordered by the Florida Supreme Court that demand a remedy. See post, at 134 (Souter, J., dissenting); post, at 145-146 (Breyer, J., dissenting). The only disagreement is as to the remedy. Because the Florida Supreme Court has said that the Florida Legislature intended to obtain the safe-harbor benefits of 3 U.S. C. 5, Justice Breyer's proposed remedy—remanding to the Florida Supreme Court for its ordering of a constitutionally proper contest until December 18—contemplates action in violation of the Florida Election Code, and hence could not be part of an "appropriate" order authorized by Fla. Stat. Ann. 102.168(8) (Supp. 2001). * * * None are more conscious of the vital limits on judicial authority than are the Members of this Court, and none stand more in admiration of the Constitution's design to leave the selection of the President to the people, through their legislatures, and to the political sphere. When contending parties invoke the process of the courts, however, it becomes our unsought responsibility to resolve the federal and constitutional issues the judicial system has been forced to confront. The judgment of the Supreme Court of Florida is reversed, and the case is remanded for further proceedings not inconsistent with this opinion. Pursuant to this Court's Rule 42, the Clerk is directed to issue the mandate in this case forthwith. It is so ordered.

Justice Rehnquist

concurring

Bush v. Gore

2000-12-12

https://www.courtlistener.com/opinion/118395/bush-v-gore/

https://www.courtlistener.com/api/rest/v3/clusters/118395/

2000-009

We join the per curiam opinion. We write separately because we believe there are additional grounds that require us to reverse the Florida Supreme Court's decision. *112 I We deal here not with an ordinary election, but with an election for the President of the United States. In Burroughs v. United States, 290 U.S. 534, 545 (1934), we said: "While presidential electors are not officers or agents of the federal government (In re Green, 134 U.S. 377, 379 [(1890)]), they exercise federal functions under, and discharge duties in virtue of authority conferred by, the Constitution of the United States. The President is vested with the executive power of the nation. The importance of his election and the vital character of its relationship to and effect upon the welfare and safety of the whole people cannot be too strongly stated." Likewise, in Anderson v. Celebrezze, 460 U.S. 780, 794— 795 (1983) (footnote omitted), we said: "[I]n the context of a Presidential election, state-imposed restrictions implicate a uniquely important national interest. For the President and the Vice President of the United States are the only elected officials who represent all the voters in the Nation." In most cases, comity and respect for federalism compel us to defer to the decisions of state courts on issues of state law. That practice reflects our understanding that the decisions of state courts are definitive pronouncements of the will of the States as sovereigns. Cf. Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). Of course, in ordinary cases, the distribution of powers among the branches of a State's government raises no questions of federal constitutional law, subject to the requirement that the government be republican in character. See U. S. Const., Art. IV, § 4. But there are a few exceptional cases in which the Constitution imposes a duty or confers a power on a particular branch of a State's government. This is one of them. Article II, § 1, cl. 2, provides that "[e]ach State shall appoint, in such Manner as the Legislature thereof may direct," electors for President and Vice President. (Emphasis added.) Thus, *113 the text of the election law itself, and not just its interpretation by the courts of the States, takes on independent significance. In McPherson v. Blacker, 146 U.S. 1 (1892), we explained that Art. II, § 1, cl. 2, "convey[s] the broadest power of determination" and "leaves it to the legislature exclusively to define the method" of appointment. 146 U.S., at 27. A significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question. Title 3 U.S. C. § 5 informs our application of Art. II, § 1, cl. 2, to the Florida statutory scheme, which, as the Florida Supreme Court acknowledged, took that statute into account. Section 5 provides that the State's selection of electors "shall be conclusive, and shall govern in the counting of the electoral votes" if the electors are chosen under laws enacted prior to election day, and if the selection process is completed six days prior to the meeting of the electoral college. As we noted in Bush v. Palm Beach County Canvassing Bd., ante, at 78: "Since § 5 contains a principle of federal law that would assure finality of the State's determination if made pursuant to a state law in effect before the election, a legislative wish to take advantage of the `safe harbor' would counsel against any construction of the Election Code that Congress might deem to be a change in the law." If we are to respect the legislature's Article II powers, therefore, we must ensure that post election state-court actions do not frustrate the legislative desire to attain the "safe harbor" provided by § 5. In Florida, the legislature has chosen to hold statewide elections to appoint the State's 25 electors. Importantly, the legislature has delegated the authority to run the elections and to oversee election disputes to the Secretary of *114 State (Secretary), Fla. Stat. Ann. § 97.012(1) (Supp. 2001), and to state circuit courts, §§ 102.168(1), 102.168(8). Isolated sections of the code may well admit of more than one interpretation, but the general coherence of the legislative scheme may not be altered by judicial interpretation so as to wholly change the statutorily provided apportionment of responsibility among these various bodies. In any election but a Presidential election, the Florida Supreme Court can give as little or as much deference to Florida's executives as it chooses, so far as Article II is concerned, and this Court will have no cause to question the court's actions. But, with respect to a Presidential election, the court must be both mindful of the legislature's role under Article II in choosing the manner of appointing electors and deferential to those bodies expressly empowered by the legislature to carry out its constitutional mandate. In order to determine whether a state court has infringed upon the legislature's authority, we necessarily must examine the law of the State as it existed prior to the action of the court. Though we generally defer to state courts on the interpretation of state law—see, e. g., Mullaney v. Wilbur, 421 U.S. 684 (1975)—there are of course areas in which the Constitution requires this Court to undertake an independent, if still deferential, analysis of state law. For example, in NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958), it was argued that we were without jurisdiction because the petitioner had not pursued the correct appellate remedy in Alabama's state courts. Petitioner had sought a state-law writ of certiorari in the Alabama Supreme Court when a writ of mandamus, according to that court, was proper. We found this state-law ground inadequate to defeat our jurisdiction because we were "unable to reconcile the procedural holding of the Alabama Supreme Court" with prior Alabama precedent. Id., at 456. The purported state-law ground was so novel, in our independent *115 estimation, that "petitioner could not fairly be deemed to have been apprised of its existence." Id., at 457. Six years later we decided Bouie v. City of Columbia, 378 U.S. 347 (1964), in which the state court had held, contrary to precedent, that the state trespass law applied to black sit-in demonstrators who had consent to enter private property but were then asked to leave. Relying upon NAACP, we concluded that the South Carolina Supreme Court's interpretation of a state penal statute had impermissibly broadened the scope of that statute beyond what a fair reading provided, in violation of due process. See 378 U.S., at 361— 362. What we would do in the present case is precisely parallel: hold that the Florida Supreme Court's interpretation of the Florida election laws impermissibly distorted them beyond what a fair reading required, in violation of Article II.[1] This inquiry does not imply a disrespect for state courts but rather a respect for the constitutionally prescribed role of state legislatures. To attach definitive weight to the pronouncement of a state court, when the very question at issue is whether the court has actually departed from the statutory meaning, would be to abdicate our responsibility to enforce the explicit requirements of Article II. *116 II Acting pursuant to its constitutional grant of authority, the Florida Legislature has created a detailed, if not perfectly crafted, statutory scheme that provides for appointment of Presidential electors by direct election. Fla. Stat. Ann. § 103.011 (1992). Under the statute, "[v]otes cast for the actual candidates for President and Vice President shall be counted as votes cast for the presidential electors supporting such candidates." Ibid. The legislature has designated the Secretary as the "chief election officer," with the responsibility to "[o]btain and maintain uniformity in the application, operation, and interpretation of the election laws." Fla. Stat. Ann. § 97.012 (Supp. 2001). The state legislature has delegated to county canvassing boards the duties of administering elections. § 102.141. Those boards are responsible for providing results to the state Elections Canvassing Commission, comprising the Governor, the Secretary of State, and the Director of the Division of Elections. § 102.111. Cf. Boardman v. Esteva, 323 So. 2d 259, 268, n. 5 (1975) ("The election process . . . is committed to the executive branch of government through duly designated officials all charged with specific duties . . . . [The] judgments [of these officials] are entitled to be regarded by the courts as presumptively correct . . ."). After the election has taken place, the canvassing boards receive returns from precincts, count the votes, and in the event that a candidate was defeated by 0.5% or less, conduct a mandatory recount. Fla. Stat. Ann. § 102.141(4) (Supp. 2001). The county canvassing boards must file certified election returns with the Department of State by 5 p.m. on the seventh day following the election. § 102.112(1). The Elections Canvassing Commission must then certify the results of the election. § 102.111(1). The state legislature has also provided mechanisms both for protesting election returns and for contesting certified *117 election results. Section 102.166 governs protests. Any protest must be filed prior to the certification of election results by the county canvassing board. § 102.166(4)(b). Once a protest has been filed, "[t]he county canvassing board may authorize a manual recount." § 102.166(4)(c). If a sample recount conducted pursuant to § 102.166(5) "indicates an error in the vote tabulation which could affect the outcome of the election," the county canvassing board is instructed to: "(a) Correct the error and recount the remaining precincts with the vote tabulation system; (b) Request the Department of State to verify the tabulation software; or (c) Manually recount all ballots," § 102.166(5). In the event a canvassing board chooses to conduct a manual recount of all ballots, § 102.166(7) prescribes procedures for such a recount. Contests to the certification of an election, on the other hand, are controlled by § 102.168. The grounds for contesting an election include "[r]eceipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election." § 102.168(3)(c). Any contest must be filed in the appropriate Florida circuit court, § 102.168(1), and the canvassing board or election board is the proper party defendant, § 102.168(4). Section 102.168(8) provides that "[t]he circuit judge to whom the contest is presented may fashion such orders as he or she deems necessary to ensure that each allegation in the complaint is investigated, examined, or checked, to prevent or correct any alleged wrong, and to provide any relief appropriate under such circumstances." In Presidential elections, the contest period necessarily terminates on the date set by 3 U.S. C. § 5 for concluding the State's "final determination" of election controversies. In its first decision, Palm Beach Canvassing Bd. v. Harris, 772 So. 2d 1220 (2000) (Harris I), the Florida Supreme Court extended the 7-day statutory certification deadline established *118 by the legislature.[2] This modification of the code, by lengthening the protest period, necessarily shortened the contest period for Presidential elections. Underlying the extension of the certification deadline and the shortchanging of the contest period was, presumably, the clear implication that certification was a matter of significance: The certified winner would enjoy presumptive validity, making a contest proceeding by the losing candidate an uphill battle. In its latest opinion, however, the court empties certification of virtually all legal consequence during the contest, and in doing so departs from the provisions enacted by the Florida Legislature. The court determined that canvassing boards' decisions regarding whether to recount ballots past the certification deadline (even the certification deadline established by Harris I ) are to be reviewed de novo, although the Election Code clearly vests discretion whether to recount in the boards, and sets strict deadlines subject to the Secretary's rejection of late tallies and monetary fines for tardiness. See Fla. Stat. Ann. § 102.112 (Supp. 2001). Moreover, the Florida court held that all late vote tallies arriving during the contest period should be automatically included in the certification regardless of the certification deadline (even the certification deadline established by Harris I ), thus virtually eliminating both the deadline and the Secretary's discretion to disregard recounts that violate it.[3] Moreover, the court's interpretation of "legal vote," and hence its decision to order a contest-period recount, plainly departed from the legislative scheme. Florida statutory law cannot reasonably be thought to require the counting of improperly *119 marked ballots. Each Florida precinct before election day provides instructions on how properly to cast a vote, Fla. Stat. Ann. § 101.46 (1992); each polling place on election day contains a working model of the voting machine it uses, Fla. Stat. Ann. § 101.5611 (Supp. 2001); and each voting booth contains a sample ballot, § 101.46. In precincts using punch card ballots, voters are instructed to punch out the ballot cleanly: "AFTER VOTING, CHECK YOUR BALLOT CARD TO BE SURE YOUR VOTING SELECTIONS ARE CLEARLY AND CLEANLY PUNCHED AND THERE ARE NO CHIPS LEFT HANGING ON THE BACK OF THE CARD." Instructions to Voters, quoted in Brief for Respondent Harris et al. 13, n. 5. No reasonable person would call it "an error in the vote tabulation," Fla. Stat. Ann. § 102.166(5) (Supp. 2001), or a "rejection of . . . legal votes," § 102.168(3)(c),[4] when electronic or electro mechanical equipment performs precisely in the manner designed, and fails to count those ballots that are not marked in the manner that these voting instructions explicitly and prominently specify. The scheme that the Florida Supreme Court's opinion attributes to the legislature is one in which machines are required to be "capable of correctly counting votes," § 101.5606(4), but which nonetheless regularly produces elections in which legal votes are predictably not tabulated, so that in close elections manual recounts are regularly required. This is of course absurd. The Secretary, who is authorized by law to issue binding interpretations of the Election Code, §§ 97.012, 106.23, rejected this peculiar reading of the statutes. See DE 00-13 (opinion of the Division of Elections). The Florida Supreme Court, *120 although it must defer to the Secretary's interpretations, see Krivanek v. Take Back Tampa Political Committee, 625 So. 2d 840, 844 (Fla. 1993), rejected her reasonable interpretation and embraced the peculiar one. See Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1273 (2000) (Harris III). But as we indicated in our remand of the earlier case, in a Presidential election the clearly expressed intent of the legislature must prevail. And there is no basis for reading the Florida statutes as requiring the counting of improperly marked ballots, as an examination of the Florida Supreme Court's textual analysis shows. We will not parse that analysis here, except to note that the principal provision of the Election Code on which it relied, § 101.5614(5), was, as Chief Justice Wells pointed out in his dissent in Gore v. Harris, 772 So. 2d 1243, 1267 (2000) (Harris II), entirely irrelevant. The State's Attorney General (who was supporting the Gore challenge) confirmed in oral argument here that never before the present election had a manual recount been conducted on the basis of the contention that "undervotes" should have been examined to determine voter intent. Tr. of Oral Arg. in Bush v. Palm Beach County Canvassing Bd., O. T. 2000, No. 00-836, pp. 39-40; cf. Broward County Canvassing Board v. Hogan, 607 So. 2d 508, 509 (Fla. Ct. App. 1992) (denial of recount for failure to count ballots with "hanging paper chads"). For the court to step away from this established practice, prescribed by the Secretary, the state official charged by the legislature with "responsibility to . . . [o]btain and maintain uniformity in the application, operation, and interpretation of the election laws," § 97.012(1), was to depart from the legislative scheme. III The scope and nature of the remedy ordered by the Florida Supreme Court jeopardizes the "legislative wish" to take *121 advantage of the safe harbor provided by 3 U.S. C. § 5. Bush v. Palm Beach County Canvassing Bd., ante, at 78 (per curiam) . December 12, 2000, is the last date for a final determination of the Florida electors that will satisfy § 5. Yet in the late afternoon of December 8th—four days before this deadline—the Supreme Court of Florida ordered recounts of tens of thousands of so-called "undervotes" spread through 64 of the State's 67 counties. This was done in a search for elusive—perhaps delusive—certainty as to the exact count of 6 million votes. But no one claims that these ballots have not previously been tabulated; they were initially read by voting machines at the time of the election, and thereafter reread by virtue of Florida's automatic recount provision. No one claims there was any fraud in the election. The Supreme Court of Florida ordered this additional recount under the provision of the Election Code giving the circuit judge the authority to provide relief that is "appropriate under such circumstances." Fla. Stat. Ann. § 102.168(8) (Supp. 2001). Surely when the Florida Legislature empowered the courts of the State to grant "appropriate" relief, it must have meant relief that would have become final by the cutoff date of 3 U.S. C. § 5. In light of the inevitable legal challenges and ensuing appeals to the Supreme Court of Florida and petitions for certiorari to this Court, the entire recounting process could not possibly be completed by that date. Whereas the majority in the Supreme Court of Florida stated its confidence that "the remaining undervotes in these counties can be [counted] within the required time frame," 772 So. 2d, at 1262, n. 22, it made no assertion that the seemingly inevitable appeals could be disposed of in that time. Although the Florida Supreme Court has on occasion taken over a year to resolve disputes over local elections, see, e. g., Beckstrom v. Volusia County Canvassing Bd., 707 So. 2d 720 (1998) (resolving contest of sheriff's race 16 months after the *122 election), it has heard and decided the appeals in the present case with great promptness. But the federal deadlines for the Presidential election simply do not permit even such a shortened process. As the dissent noted: "In [the four days remaining], all questionable ballots must be reviewed by the judicial officer appointed to discern the intent of the voter in a process open to the public. Fairness dictates that a provision be made for either party to object to how a particular ballot is counted. Additionally, this short time period must allow for judicial review. I respectfully submit this cannot be completed without taking Florida's presidential electors outside the safe harbor provision, creating the very real possibility of disenfranchising those nearly six million voters who are able to correctly cast their ballots on election day." 772 So. 2d, at 1269 (opinion of Wells, C. J.) (footnote omitted). The other dissenters echoed this concern: "[T]he majority is departing from the essential requirements of the law by providing a remedy which is impossible to achieve and which will ultimately lead to chaos." Id., at 1273 (Harding, J., dissenting, joined by Shaw, J.). Given all these factors, and in light of the legislative intent identified by the Florida Supreme Court to bring Florida within the "safe harbor" provision of 3 U.S. C. § 5, the remedy prescribed by the Supreme Court of Florida cannot be deemed an "appropriate" one as of December 8. It significantly departed from the statutory framework in place on November 7, and authorized open-ended further proceedings which could not be completed by December 12, thereby preventing a final determination by that date. For these reasons, in addition to those given in the per curiam opinion, we would reverse.

We join the per curiam opinion. We write separately because we believe there are additional grounds that require us to reverse the Florida Supreme Court's decision. *112 I We deal here not with an ordinary election, but with an election for the President of the United States. In we said: "While presidential electors are not officers or agents of the federal government ]), they exercise federal functions under, and discharge duties in virtue of authority conferred by, the Constitution of the United States. The President is vested with the executive power of the nation. The importance of his election and the vital character of its relationship to and effect upon the welfare and safety of the whole people cannot be too strongly stated." Likewise, in we said: "I]n the context of a Presidential election, state-imposed restrictions implicate a uniquely important national interest. For the President and the Vice President of the United States are the only elected officials who represent all the voters in the Nation." In most cases, comity and respect for federalism compel us to defer to the decisions of state courts on issues of state law. That practice reflects our understanding that the decisions of state courts are definitive pronouncements of the will of the States as sovereigns. Cf. Erie R. Of course, in ordinary cases, the distribution of powers among the branches of a State's government raises no questions of federal constitutional law, subject to the requirement that the government be republican in character. See U. S. Const., Art. IV, 4. But there are a few exceptional cases in which the Constitution imposes a duty or confers a power on a particular branch of a State's government. This is one of them. Article II, 1, cl. 2, provides that "e]ach State shall appoint, in such Manner as the Legislature thereof may direct," electors for President and Vice President. (Emphasis added.) Thus, *113 the text of the election law itself, and not just its interpretation by the courts of the States, takes on independent significance. In we explained that Art. II, 1, cl. 2, "conveys] the broadest power of determination" and "leaves it to the legislature exclusively to define the method" of A significant departure from the legislative scheme for appointing Presidential electors presents a federal constitutional question. Title 3 U.S. C. 5 informs our application of Art. II, 1, cl. 2, to the Florida statutory scheme, which, as the Florida Supreme Court acknowledged, took that statute into account. Section 5 provides that the State's selection of electors "shall be conclusive, and shall govern in the counting of the electoral votes" if the electors are chosen under laws enacted prior to election day, and if the selection process is completed six days prior to the meeting of the electoral college. As we noted in Bush v. Palm Beach County Canvassing Bd., ante, at 78: "Since 5 contains a principle of federal law that would assure finality of the State's determination if made pursuant to a state law in effect before the election, a legislative wish to take advantage of the `safe harbor' would counsel against any construction of the Election Code that Congress might deem to be a change in the law." If we are to respect the legislature's Article II powers, therefore, we must ensure that post election state-court actions do not frustrate the legislative desire to attain the "safe harbor" provided by 5. In Florida, the legislature has chosen to hold statewide elections to appoint the State's 25 electors. Importantly, the legislature has delegated the authority to run the elections and to oversee election disputes to the Secretary of *114 State (Secretary), Fla. Stat. Ann. 97.012(1) (Supp. 2001), and to state circuit courts, 102.168(1), 102.168(8). Isolated sections of the code may well admit of more than one interpretation, but the general coherence of the legislative scheme may not be altered by judicial interpretation so as to wholly change the statutorily provided apportionment of responsibility among these various bodies. In any election but a Presidential election, the Florida Supreme Court can give as little or as much deference to Florida's executives as it chooses, so far as Article II is concerned, and this Court will have no cause to question the court's actions. But, with respect to a Presidential election, the court must be both mindful of the legislature's role under Article II in choosing the manner of appointing electors and deferential to those bodies expressly empowered by the legislature to carry out its constitutional mandate. In order to determine whether a state court has infringed upon the legislature's authority, we necessarily must examine the law of the State as it existed prior to the action of the court. Though we generally defer to state courts on the interpretation of state law—see, e. g., —there are of course areas in which the Constitution requires this Court to undertake an independent, if still deferential, analysis of state law. For example, in it was argued that we were without jurisdiction because the petitioner had not pursued the correct appellate remedy in Alabama's state courts. Petitioner had sought a state-law writ of certiorari in the Alabama Supreme Court when a writ of mandamus, according to that court, was proper. We found this state-law ground inadequate to defeat our jurisdiction because we were "unable to reconcile the procedural holding of the Alabama Supreme Court" with prior Alabama precedent. The purported state-law ground was so novel, in our independent *115 estimation, that "petitioner could not fairly be deemed to have been apprised of its existence." Six years later we decided in which the state court had held, contrary to precedent, that the state trespass law applied to black sit-in demonstrators who had consent to enter private property but were then asked to leave. Relying upon NAACP, we concluded that the South Carolina Supreme Court's interpretation of a state penal statute had impermissibly broadened the scope of that statute beyond what a fair reading provided, in violation of due process. See — 362. What we would do in the present case is precisely parallel: hold that the Florida Supreme Court's interpretation of the Florida election laws impermissibly distorted them beyond what a fair reading required, in violation of Article II.1] This inquiry does not imply a disrespect for state courts but rather a respect for the constitutionally prescribed role of state legislatures. To attach definitive weight to the pronouncement of a state court, when the very question at issue is whether the court has actually departed from the statutory meaning, would be to abdicate our responsibility to enforce the explicit requirements of Article II. *116 II Acting pursuant to its constitutional grant of authority, the Florida Legislature has created a detailed, if not perfectly crafted, statutory scheme that provides for appointment of Presidential electors by direct election. Fla. Stat. Ann. 103.011 Under the statute, "v]otes cast for the actual candidates for President and Vice President shall be counted as votes cast for the presidential electors supporting such candidates." The legislature has designated the Secretary as the "chief election officer," with the responsibility to "o]btain and maintain uniformity in the application, operation, and interpretation of the election laws." Fla. Stat. Ann. 97.012 (Supp. 2001). The state legislature has delegated to county canvassing boards the duties of administering elections. 102.141. Those boards are responsible for providing results to the state Elections Canvassing Commission, comprising the Governor, the Secretary of State, and the Director of the Division of Elections. 102.111. Cf. ("The election process is committed to the executive branch of government through duly designated officials all charged with specific duties The] judgments of these officials] are entitled to be regarded by the courts as presumptively correct"). After the election has taken place, the canvassing boards receive returns from precincts, count the votes, and in the event that a candidate was defeated by 0.5% or less, conduct a mandatory recount. Fla. Stat. Ann. 102.141(4) (Supp. 2001). The county canvassing boards must file certified election returns with the Department of State by 5 p.m. on the seventh day following the election. 102.112(1). The Elections Canvassing Commission must then certify the results of the election. 102.111(1). The state legislature has also provided mechanisms both for protesting election returns and for contesting certified *117 election results. Section 102.166 governs protests. Any protest must be filed prior to the certification of election results by the county canvassing board. 102.166(4)(b). Once a protest has been filed, "t]he county canvassing board may authorize a manual recount." 102.166(4)(c). If a sample recount conducted pursuant to 102.166(5) "indicates an error in the vote tabulation which could affect the outcome of the election," the county canvassing board is instructed to: "(a) Correct the error and recount the remaining precincts with the vote tabulation system; (b) Request the Department of State to verify the tabulation software; or (c) Manually recount all ballots," 102.166(5). In the event a canvassing board chooses to conduct a manual recount of all ballots, 102.166(7) prescribes procedures for such a recount. Contests to the certification of an election, on the other hand, are controlled by 102.168. The grounds for contesting an election include "r]eceipt of a number of illegal votes or rejection of a number of legal votes sufficient to change or place in doubt the result of the election." 102.168(3)(c). Any contest must be filed in the appropriate Florida circuit court, 102.168(1), and the canvassing board or election board is the proper party defendant, 102.168(4). Section 102.168(8) provides that "t]he circuit judge to whom the contest is presented may fashion such orders as he or she deems necessary to ensure that each allegation in the complaint is investigated, examined, or checked, to prevent or correct any alleged wrong, and to provide any relief appropriate under such circumstances." In Presidential elections, the contest period necessarily terminates on the date set by 3 U.S. C. 5 for concluding the State's "final determination" of election controversies. In its first decision, Palm Beach Canvassing the Florida Supreme Court extended the 7-day statutory certification deadline established *118 by the legislature.2] This modification of the code, by lengthening the protest period, necessarily shortened the contest period for Presidential elections. Underlying the extension of the certification deadline and the shortchanging of the contest period was, presumably, the clear implication that certification was a matter of significance: The certified winner would enjoy presumptive validity, making a contest proceeding by the losing candidate an uphill battle. In its latest opinion, however, the court empties certification of virtually all legal consequence during the contest, and in doing so departs from the provisions enacted by the Florida Legislature. The court determined that canvassing boards' decisions regarding whether to recount ballots past the certification deadline (even the certification deadline established by Harris I ) are to be reviewed de novo, although the Election Code clearly vests discretion whether to recount in the boards, and sets strict deadlines subject to the Secretary's rejection of late tallies and monetary fines for tardiness. See Fla. Stat. Ann. 102.112 (Supp. 2001). Moreover, the Florida court held that all late vote tallies arriving during the contest period should be automatically included in the certification regardless of the certification deadline (even the certification deadline established by Harris I ), thus virtually eliminating both the deadline and the Secretary's discretion to disregard recounts that violate it.3] Moreover, the court's interpretation of "legal vote," and hence its decision to order a contest-period recount, plainly departed from the legislative scheme. Florida statutory law cannot reasonably be thought to require the counting of improperly *119 marked ballots. Each Florida precinct before election day provides instructions on how properly to cast a vote, Fla. Stat. Ann. 101.46 ; each polling place on election day contains a working model of the voting machine it uses, Fla. Stat. Ann. 101.5611 (Supp. 2001); and each voting booth contains a sample ballot, 101.46. In precincts using punch card ballots, voters are instructed to punch out the ballot cleanly: "AFTER VOTING, CHECK YOUR BALLOT CARD TO BE SURE YOUR VOTING SELECTIONS ARE CLEARLY AND CLEANLY PUNCHED AND THERE ARE NO CHIPS LEFT HANGING ON THE BACK OF THE CARD." Instructions to Voters, quoted in Brief for Respondent Harris et al. 13, n. 5. No reasonable person would call it "an error in the vote tabulation," Fla. Stat. Ann. 102.166(5) (Supp. 2001), or a "rejection of legal votes," 102.168(3)(c),4] when electronic or electro mechanical equipment performs precisely in the manner designed, and fails to count those ballots that are not marked in the manner that these voting instructions explicitly and prominently specify. The scheme that the Florida Supreme Court's opinion attributes to the legislature is one in which machines are required to be "capable of correctly counting votes," 101.5606(4), but which nonetheless regularly produces elections in which legal votes are predictably not tabulated, so that in close elections manual recounts are regularly required. This is of course absurd. The Secretary, who is authorized by law to issue binding interpretations of the Election Code, 97.012, 106.23, rejected this peculiar reading of the statutes. See DE 00-13 (opinion of the Division of Elections). The Florida Supreme Court, *120 although it must defer to the Secretary's interpretations, see rejected her reasonable interpretation and embraced the peculiar one. See Palm Beach County Canvassing But as we indicated in our remand of the earlier case, in a Presidential election the clearly expressed intent of the legislature must prevail. And there is no basis for reading the Florida statutes as requiring the counting of improperly marked ballots, as an examination of the Florida Supreme Court's textual analysis shows. We will not parse that analysis here, except to note that the principal provision of the Election Code on which it relied, 101.5614(5), was, as Chief Justice Wells pointed out in his dissent in entirely irrelevant. The State's Attorney General (who was supporting the Gore challenge) confirmed in oral argument here that never before the present election had a manual recount been conducted on the basis of the contention that "undervotes" should have been examined to determine voter intent. Tr. of Oral Arg. in Bush v. Palm Beach County Canvassing Bd., O. T. No. 00-836, pp. 39-40; cf. Broward County Canvassing For the court to step away from this established practice, prescribed by the Secretary, the state official charged by the legislature with "responsibility to o]btain and maintain uniformity in the application, operation, and interpretation of the election laws," 97.012(1), was to depart from the legislative scheme. III The scope and nature of the remedy ordered by the Florida Supreme Court jeopardizes the "legislative wish" to take *121 advantage of the safe harbor provided by 3 U.S. C. 5. Bush v. Palm Beach County Canvassing Bd., ante, at 78 (per curiam) December 12, is the last date for a final determination of the Florida electors that will satisfy 5. Yet in the late afternoon of December 8th—four days before this deadline—the Supreme Court of Florida ordered recounts of tens of thousands of so-called "undervotes" spread through 64 of the State's 67 counties. This was done in a search for elusive—perhaps delusive—certainty as to the exact count of 6 million votes. But no one claims that these ballots have not previously been tabulated; they were initially read by voting machines at the time of the election, and thereafter reread by virtue of Florida's automatic recount provision. No one claims there was any fraud in the election. The Supreme Court of Florida ordered this additional recount under the provision of the Election Code giving the circuit judge the authority to provide relief that is "appropriate under such circumstances." Fla. Stat. Ann. 102.168(8) (Supp. 2001). Surely when the Florida Legislature empowered the courts of the State to grant "appropriate" relief, it must have meant relief that would have become final by the cutoff date of 3 U.S. C. 5. In light of the inevitable legal challenges and ensuing appeals to the Supreme Court of Florida and petitions for certiorari to this Court, the entire recounting process could not possibly be completed by that date. Whereas the majority in the Supreme Court of Florida stated its confidence that "the remaining undervotes in these counties can be counted] within the required time frame," n. 22, it made no assertion that the seemingly inevitable appeals could be disposed of in that time. Although the Florida Supreme Court has on occasion taken over a year to resolve disputes over local elections, see, e. g., it has heard and decided the appeals in the present case with great promptness. But the federal deadlines for the Presidential election simply do not permit even such a shortened process. As the dissent noted: "In the four days remaining], all questionable ballots must be reviewed by the judicial officer appointed to discern the intent of the voter in a process open to the public. Fairness dictates that a provision be made for either party to object to how a particular ballot is counted. Additionally, this short time period must allow for judicial review. I respectfully submit this cannot be completed without taking Florida's presidential electors outside the safe harbor provision, creating the very real possibility of disenfranchising those nearly six million voters who are able to correctly cast their ballots on election day." The other dissenters echoed this concern: "T]he majority is departing from the essential requirements of the law by providing a remedy which is impossible to achieve and which will ultimately lead to chaos." Given all these factors, and in light of the legislative intent identified by the Florida Supreme Court to bring Florida within the "safe harbor" provision of 3 U.S. C. 5, the remedy prescribed by the Supreme Court of Florida cannot be deemed an "appropriate" one as of December 8. It significantly departed from the statutory framework in place on November 7, and authorized open-ended further proceedings which could not be completed by December 12, thereby preventing a final determination by that date. For these reasons, in addition to those given in the per curiam opinion, we would reverse.

Justice Stevens

dissenting

Bush v. Gore

2000-12-12

https://www.courtlistener.com/opinion/118395/bush-v-gore/

https://www.courtlistener.com/api/rest/v3/clusters/118395/

2000-009

The Constitution assigns to the States the primary responsibility for determining the manner of selecting the Presidential electors. See Art. II, § 1, cl. 2. When questions arise about the meaning of state laws, including election laws, it is our settled practice to accept the opinions of the highest courts of the States as providing the final answers. On rare occasions, however, either federal statutes or the Federal Constitution may require federal judicial intervention in state elections. This is not such an occasion. The federal questions that ultimately emerged in this case are not substantial. Article II provides that "[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors." Ibid. (emphasis added). It does not create state legislatures out of whole cloth, but rather takes them as they come—as creatures born of, and constrained by, their state constitutions. Lest there be any doubt, we stated over 100 years ago in McPherson v. Blacker, 146 U.S. 1, 25 (1892), that "[w]hat is forbidden or required to be done by a State" in the Article II context "is forbidden or required of the legislative power under state constitutions as they exist." In the same vein, we also observed that "[t]he [State's] legislative power is the supreme authority except as limited by the constitution of the State." Ibid.; cf. Smiley v. Holm, 285 U.S. 355, 367 (1932).[1] The legislative power in Florida is subject to judicial review pursuant *124 to Article V of the Florida Constitution, and nothing in Article II of the Federal Constitution frees the state legislature from the constraints in the State Constitution that created it. Moreover, the Florida Legislature's own decision to employ a unitary code for all elections indicates that it intended the Florida Supreme Court to play the same role in Presidential elections that it has historically played in resolving electoral disputes. The Florida Supreme Court's exercise of appellate jurisdiction therefore was wholly consistent with, and indeed contemplated by, the grant of authority in Article II. It hardly needs stating that Congress, pursuant to 3 U.S. C. § 5, did not impose any affirmative duties upon the States that their governmental branches could "violate." Rather, § 5 provides a safe harbor for States to select electors in contested elections "by judicial or other methods" established by laws prior to the election day. Section 5, like Article II, assumes the involvement of the state judiciary in interpreting state election laws and resolving election disputes under those laws. Neither § 5 nor Article II grants federal judges any special authority to substitute their views for those of the state judiciary on matters of state law. Nor are petitioners correct in asserting that the failure of the Florida Supreme Court to specify in detail the precise manner in which the "intent of the voter," Fla. Stat. Ann. § 101.5614(5) (Supp. 2001), is to be determined rises to the level of a constitutional violation.[2] We found such a violation *125 when individual votes within the same State were weighted unequally, see, e. g., Reynolds v. Sims, 377 U.S. 533, 568 (1964), but we have never before called into question the substantive standard by which a State determines that a vote has been legally cast. And there is no reason to think that the guidance provided to the fact finders, specifically the various canvassing boards, by the "intent of the voter" standard is any less sufficient—or will lead to results any less uniform—than, for example, the "beyond a reasonable doubt" standard employed every day by ordinary citizens in courtrooms across this country.[3] *126 Admittedly, the use of differing substandards for determining voter intent in different counties employing similar voting systems may raise serious concerns. Those concerns are alleviated—if not eliminated—by the fact that a single impartial magistrate will ultimately adjudicate all objections arising from the recount process. Of course, as a general matter, "[t]he interpretation of constitutional principles must not be too literal. We must remember that the machinery of government would not work if it were not allowed a little play in its joints." Bain Peanut Co. of Tex. v. Pinson, 282 U.S. 499, 501 (1931) (Holmes, J.). If it were otherwise, Florida's decision to leave to each county the determination of what balloting system to employ—despite enormous differences in accuracy[4]—might run afoul of equal protection. So, too, might the similar decisions of the vast majority of state legislatures to delegate to local authorities certain decisions with respect to voting systems and ballot design. Even assuming that aspects of the remedial scheme might ultimately be found to violate the Equal Protection Clause, I could not subscribe to the majority's disposition of the case. As the majority explicitly holds, once a state legislature determines to select electors through a popular vote, the right to have one's vote counted is of constitutional stature. As the majority further acknowledges, Florida law holds that all ballots that reveal the intent of the voter constitute valid votes. Recognizing these principles, the majority nonetheless orders the termination of the contest proceeding before all such votes have been tabulated. Under their own reasoning, *127 the appropriate course of action would be to remand to allow more specific procedures for implementing the legislature's uniform general standard to be established. In the interest of finality, however, the majority effectively orders the disenfranchisement of an unknown number of voters whose ballots reveal their intent—and are therefore legal votes under state law—but were for some reason rejected by ballot-counting machines. It does so on the basis of the deadlines set forth in Title 3 of the United States Code. Ante, at 110. But, as I have already noted, those provisions merely provide rules of decision for Congress to follow when selecting among conflicting slates of electors. Supra, at 124. They do not prohibit a State from counting what the majority concedes to be legal votes until a bona fide winner is determined. Indeed, in 1960, Hawaii appointed two slates of electors and Congress chose to count the one appointed on January 4, 1961, well after the Title 3 deadlines. See Josephson & Ross, Repairing the Electoral College, 22 J. Legis. 145, 166, n. 154 (1996).[5] Thus, nothing prevents the majority, even if it properly found an equal protection violation, from ordering relief appropriate to remedy that violation without depriving Florida voters of their right to have their votes counted. As the majority notes, "[a] desire for speed is not a general excuse for ignoring equal protection guarantees." Ante, at 108. Finally, neither in this case, nor in its earlier opinion in Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1220 (2000), did the Florida Supreme Court make any substantive *128 change in Florida electoral law.[6] Its decisions were rooted in long-established precedent and were consistent with the relevant statutory provisions, taken as a whole. It did what courts do[7]—it decided the case before it in light of the legislature's intent to leave no legally cast vote uncounted. In so doing, it relied on the sufficiency of the general "intent of the voter" standard articulated by the state legislature, coupled with a procedure for ultimate review by an impartial judge, to resolve the concern about disparate evaluations of contested ballots. If we assume—as I do— that the members of that court and the judges who would have carried out its mandate are impartial, its decision does not even raise a colorable federal question. What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, *129 the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law. I respectfully dissent.

The Constitution assigns to the States the primary responsibility for determining the manner of selecting the Presidential electors. See Art. II, 1, cl. 2. When questions arise about the meaning of state laws, including election laws, it is our settled practice to accept the opinions of the highest courts of the States as providing the final answers. On rare occasions, however, either federal statutes or the Federal Constitution may require federal judicial intervention in state elections. This is not such an occasion. The federal questions that ultimately emerged in this case are not substantial. Article II provides that "[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors." It does not create state legislatures out of whole cloth, but rather takes them as they come—as creatures born of, and constrained by, their state constitutions. Lest there be any doubt, we stated over 100 years ago in that "[w]hat is forbidden or required to be done by a State" in the Article II context "is forbidden or required of the legislative power under state constitutions as they exist." In the same vein, we also observed that "[t]he [State's] legislative power is the supreme authority except as limited by the constitution of the State." ; cf.[1] The legislative power in Florida is subject to judicial review pursuant *124 to Article V of the Florida Constitution, and nothing in Article II of the Federal Constitution frees the state legislature from the constraints in the State Constitution that created it. Moreover, the Florida Legislature's own decision to employ a unitary code for all elections indicates that it intended the Florida Supreme Court to play the same role in Presidential elections that it has historically played in resolving electoral disputes. The Florida Supreme Court's exercise of appellate jurisdiction therefore was wholly consistent with, and indeed contemplated by, the grant of authority in Article II. It hardly needs stating that Congress, pursuant to 3 U.S. C. 5, did not impose any affirmative duties upon the States that their governmental branches could "violate." Rather, 5 provides a safe harbor for States to select electors in contested elections "by judicial or other methods" established by laws prior to the election day. Section 5, like Article II, assumes the involvement of the state judiciary in interpreting state election laws and resolving election disputes under those laws. Neither 5 nor Article II grants federal judges any special authority to substitute their views for those of the state judiciary on matters of state law. Nor are petitioners correct in asserting that the failure of the Florida Supreme Court to specify in detail the precise manner in which the "intent of the voter," Fla. Stat. Ann. 101.5614(5) (Supp. 2001), is to be determined rises to the level of a constitutional violation.[2] We found such a violation *1 when individual votes within the same State were weighted unequally, see, e. g., but we have never before called into question the substantive standard by which a State determines that a vote has been legally cast. And there is no reason to think that the guidance provided to the fact finders, specifically the various canvassing boards, by the "intent of the voter" standard is any less sufficient—or will lead to results any less uniform—than, for example, the "beyond a reasonable doubt" standard employed every day by ordinary citizens in courtrooms across this country.[3] *126 Admittedly, the use of differing substandards for determining voter intent in different counties employing similar voting systems may raise serious concerns. Those concerns are alleviated—if not eliminated—by the fact that a single impartial magistrate will ultimately adjudicate all objections arising from the recount process. Of course, as a general matter, "[t]he interpretation of constitutional principles must not be too literal. We must remember that the machinery of government would not work if it were not allowed a little play in its joints." Bain Peanut Co. of If it were otherwise, Florida's decision to leave to each county the determination of what balloting system to employ—despite enormous differences in accuracy[4]—might run afoul of equal protection. So, too, might the similar decisions of the vast majority of state legislatures to delegate to local authorities certain decisions with respect to voting systems and ballot design. Even assuming that aspects of the remedial scheme might ultimately be found to violate the Equal Protection Clause, I could not subscribe to the majority's disposition of the case. As the majority explicitly holds, once a state legislature determines to select electors through a popular vote, the right to have one's vote counted is of constitutional stature. As the majority further acknowledges, Florida law holds that all ballots that reveal the intent of the voter constitute valid votes. Recognizing these principles, the majority nonetheless orders the termination of the contest proceeding before all such votes have been tabulated. Under their own reasoning, *127 the appropriate course of action would be to remand to allow more specific procedures for implementing the legislature's uniform general standard to be established. In the interest of finality, however, the majority effectively orders the disenfranchisement of an unknown number of voters whose ballots reveal their intent—and are therefore legal votes under state law—but were for some reason rejected by ballot-counting machines. It does so on the basis of the deadlines set forth in Title 3 of the United States Code. Ante, at 110. But, as I have already noted, those provisions merely provide rules of decision for Congress to follow when selecting among conflicting slates of electors. They do not prohibit a State from counting what the majority concedes to be legal votes until a bona fide winner is determined. Indeed, in 1960, Hawaii appointed two slates of electors and Congress chose to count the one appointed on January 4, 1961, well after the Title 3 deadlines. See Josephson & Ross, Repairing the Electoral College,[5] Thus, nothing prevents the majority, even if it properly found an equal protection violation, from ordering relief appropriate to remedy that violation without depriving Florida voters of their right to have their votes counted. As the majority notes, "[a] desire for speed is not a general excuse for ignoring equal protection guarantees." Ante, at 108. Finally, neither in this case, nor in its earlier opinion in Palm Beach County Canvassing did the Florida Supreme Court make any substantive *128 change in Florida electoral law.[6] Its decisions were rooted in long-established precedent and were consistent with the relevant statutory provisions, taken as a whole. It did what courts do[7]—it decided the case before it in light of the legislature's intent to leave no legally cast vote uncounted. In so doing, it relied on the sufficiency of the general "intent of the voter" standard articulated by the state legislature, coupled with a procedure for ultimate review by an impartial judge, to resolve the concern about disparate evaluations of contested ballots. If we assume—as I do— that the members of that court and the judges who would have carried out its mandate are impartial, its decision does not even raise a colorable federal question. What must underlie petitioners' entire federal assault on the Florida election procedures is an unstated lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed. Otherwise, their position is wholly without merit. The endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land. It is confidence in the men and women who administer the judicial system that is the true backbone of the rule of law. Time will one day heal the wound to that confidence that will be inflicted by today's decision. One thing, however, is certain. Although we may never know with complete certainty the identity of the winner of this year's Presidential election, *129 the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law. I respectfully dissent.

Justice Souter

second_dissenting

Bush v. Gore

2000-12-12

https://www.courtlistener.com/opinion/118395/bush-v-gore/

https://www.courtlistener.com/api/rest/v3/clusters/118395/

2000-009

The Court should not have reviewed either Bush v. Palm Beach County Canvassing Bd., ante, p. 70 (per curiam), or this case, and should not have stopped Florida's attempt to recount all undervote ballots, see ante, at 102, by issuing a stay of the Florida Supreme Court's orders during the period of this review, see Bush v. Gore, post, at 1046. If this Court had allowed the State to follow the course indicated by the opinions of its own Supreme Court, it is entirely possible that there would ultimately have been no issue requiring our review, and political tension could have worked itself out in the Congress following the procedure provided in 3 U.S. C. § 15. The case being before us, however, its resolution by the majority is another erroneous decision. As will be clear, I am in substantial agreement with the dissenting opinions of Justice Stevens, Justice Ginsburg, and Justice Breyer. I write separately only to say how straightforward the issues before us really are. There are three issues: whether the State Supreme Court's interpretation of the statute providing for a contest of the state election results somehow violates 3 U.S. C. § 5; whether that court's construction of the state statutory provisions governing contests impermissibly changes a state law from what the State's legislature has provided, in violation of Article II, § 1, cl. 2, of the National Constitution; and whether the manner of interpreting markings on disputed ballots failing to cause machines to register votes for President (the undervote ballots) violates the equal protection or *130 due process guaranteed by the Fourteenth Amendment. None of these issues is difficult to describe or to resolve. I The 3 U.S. C. § 5 issue is not serious. That provision sets certain conditions for treating a State's certification of Presidential electors as conclusive in the event that a dispute over recognizing those electors must be resolved in the Congress under 3 U.S. C. § 15. Conclusiveness requires selection under a legal scheme in place before the election, with results determined at least six days before the date set for casting electoral votes. But no State is required to conform to § 5 if it cannot do that (for whatever reason); the sanction for failing to satisfy the conditions of § 5 is simply loss of what has been called its "safe harbor." And even that determination is to be made, if made anywhere, in the Congress. II The second matter here goes to the State Supreme Court's interpretation of certain terms in the state statute governing election "contests," Fla. Stat. Ann. § 102.168 (Supp. 2001); there is no question here about the state court's interpretation of the related provisions dealing with the antecedent process of "protesting" particular vote counts, § 102.166, which was involved in the previous case, Bush v. Palm Beach County Canvassing Bd. The issue is whether the judgment of the State Supreme Court has displaced the state legislature's provisions for election contests: is the law as declared by the court different from the provisions made by the legislature, to which the National Constitution commits responsibility for determining how each State's Presidential electors are chosen? See U. S. Const., Art. II, § 1, cl. 2. Bush does not, of course, claim that any judicial act interpreting a statute of uncertain meaning is enough to displace the legislative provision and violate Article II; statutes require interpretation, which does not without more affect the legislative character *131 of a statute within the meaning of the Constitution. Brief for Petitioner in Bush v. Palm Beach County Canvassing Bd., O. T. 2000, No. 00-836, p. 48, n. 22. What Bush does argue, as I understand the contention, is that the interpretation of § 102.168 was so unreasonable as to transcend the accepted bounds of statutory interpretation, to the point of being a nonjudicial act and producing new law untethered to the legislative Act in question. The starting point for evaluating the claim that the Florida Supreme Court's interpretation effectively rewrote § 102.168 must be the language of the provision on which Gore relies to show his right to raise this contest: that the previously certified result in Bush's favor was produced by "rejection of a number of legal votes sufficient to change or place in doubt the result of the election." Fla. Stat. Ann. § 102.168(3)(c) (Supp. 2001). None of the state court's interpretations is unreasonable to the point of displacing the legislative enactment quoted. As I will note below, other interpretations were of course possible, and some might have been better than those adopted by the Florida court's majority; the two dissents from the majority opinion of that court and various briefs submitted to us set out alternatives. But the majority view is in each instance within the bounds of reasonable interpretation, and the law as declared is consistent with Article II. 1. The statute does not define a "legal vote," the rejection of which may affect the election. The State Supreme Court was therefore required to define it, and in doing that the court looked to another election statute, § 101.5614(5), dealing with damaged or defective ballots, which contains a provision that no vote shall be disregarded "if there is a clear indication of the intent of the voter as determined by the canvassing board." The court read that objective of looking to the voter's intent as indicating that the legislature probably meant "legal vote" to mean a vote recorded on a ballot indicating what the voter intended. Gore v. Harris, 772 *132 So. 2d 1243, 1256-1257 (2000). It is perfectly true that the majority might have chosen a different reading. See, e. g., Brief for Respondent Harris et al. 10 (defining "legal votes" as "votes properly executed in accordance with the instructions provided to all registered voters in advance of the election and in the polling places"). But even so, there is no constitutional violation in following the majority view; Article II is unconcerned with mere disagreements about interpretive merits. 2. The Florida court next interpreted "rejection" to determine what act in the counting process may be attacked in a contest. Again, the statute does not define the term. The court majority read the word to mean simply a failure to count. 772 So. 2d, at 1257. That reading is certainly within the bounds of common sense, given the objective to give effect to a voter's intent if that can be determined. A different reading, of course, is possible. The majority might have concluded that "rejection" should refer to machine malfunction, or that a ballot should not be treated as "reject[ed]" in the absence of wrongdoing by election officials, lest contests be so easy to claim that every election will end up in one. Cf. id., at 1266 (Wells, C. J., dissenting). There is, however, nothing nonjudicial in the Florida majority's more hospitable reading. 3. The same is true about the court majority's understanding of the phrase "votes sufficient to change or place in doubt" the result of the election in Florida. The court held that if the uncounted ballots were so numerous that it was reasonably possible that they contained enough "legal" votes to swing the election, this contest would be authorized by the statute.[*] While the majority might have thought (as *133 the trial judge did) that a probability, not a possibility, should be necessary to justify a contest, that reading is not required by the statute's text, which says nothing about probability. Whatever people of good will and good sense may argue about the merits of the Florida court's reading, there is no warrant for saying that it transcends the limits of reasonable statutory interpretation to the point of supplanting the statute enacted by the "legislature" within the meaning of Article II. In sum, the interpretations by the Florida court raise no substantial question under Article II. That court engaged in permissible construction in determining that Gore had instituted a contest authorized by the state statute, and it proceeded to direct the trial judge to deal with that contest in the exercise of the discretionary powers generously conferred by Fla. Stat. Ann. § 102.168(8) (Supp. 2001), to "fashion such orders as he or she deems necessary to ensure that each allegation in the complaint is investigated, examined, or checked, to prevent or correct any alleged wrong, and to provide any relief appropriate under such circumstances." As Justice Ginsburg has persuasively explained in her own dissenting opinion, our customary respect for state interpretations of state law counsels against rejection of the Florida court's determinations in this case. III It is only on the third issue before us that there is a meritorious argument for relief, as this Court's per curiam opinion recognizes. It is an issue that might well have been dealt with adequately by the Florida courts if the state proceedings had not been interrupted, and if not disposed of at the state level it could have been considered by the Congress in any electoral vote dispute. But because the course of *134 state proceedings has been interrupted, time is short, and the issue is before us, I think it sensible for the Court to address it. Petitioners have raised an equal protection claim (or, alternatively, a due process claim, see generally Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982)), in the charge that unjustifiably disparate standards are applied in different electoral jurisdictions to otherwise identical facts. It is true that the Equal Protection Clause does not forbid the use of a variety of voting mechanisms within a jurisdiction, even though different mechanisms will have different levels of effectiveness in recording voters' intentions; local variety can be justified by concerns about cost, the potential value of innovation, and so on. But evidence in the record here suggests that a different order of disparity obtains under rules for determining a voter's intent that have been applied (and could continue to be applied) to identical types of ballots used in identical brands of machines and exhibiting identical physical characteristics (such as "hanging" or "dimpled" chads). See, e. g., Tr. 238-242 (Dec. 2-3, 2000) (testimony of Palm Beach County Canvassing Board Chairman Judge Charles Burton describing varying standards applied to imperfectly punched ballots in Palm Beach County during precertification manual recount); id., at 497-500 (similarly describing varying standards applied in Miami-Dade County); Tr. of Hearing 8-10 (Dec. 8, 2000) (soliciting from county canvassing boards proposed protocols for determining voters' intent but declining to provide a precise, uniform standard). I can conceive of no legitimate state interest served by these differing treatments of the expressions of voters' fundamental rights. The differences appear wholly arbitrary. In deciding what to do about this, we should take account of the fact that electoral votes are due to be cast in six days. I would therefore remand the case to the courts of Florida with instructions to establish uniform standards for evaluating the several types of ballots that have prompted differing *135 treatments, to be applied within and among counties when passing on such identical ballots in any further recounting (or successive recounting) that the courts might order. Unlike the majority, I see no warrant for this Court to assume that Florida could not possibly comply with this requirement before the date set for the meeting of electors, December 18. Although one of the dissenting justices of the State Supreme Court estimated that disparate standards potentially affected 170,000 votes, Gore v. Harris, 772 So. 2d, at 1272-1273, the number at issue is significantly smaller. The 170,000 figure apparently represents all uncounted votes, both undervotes (those for which no Presidential choice was recorded by a machine) and overvotes (those rejected because of votes for more than one candidate). Tr. of Oral Arg. 61-62. But as Justice Breyer has pointed out, no showing has been made of legal overvotes uncounted, and counsel for Gore made an uncontradicted representation to the Court that the statewide total of undervotes is about 60,000. Id., at 62. To recount these manually would be a tall order, but before this Court stayed the effort to do that the courts of Florida were ready to do their best to get that job done. There is no justification for denying the State the opportunity to try to count all disputed ballots now. I respectfully dissent. Justice Ginsburg, with whom Justice Stevens joins, and with whom Justice Souter and Justice Breyer join as to Part I, dissenting. I The Chief Justice acknowledges that provisions of Florida's Election Code "may well admit of more than one interpretation." Ante, at 114 (concurring opinion). But instead of respecting the state high court's province to say what the State's Election Code means, The Chief Justice maintains that Florida's Supreme Court has veered so far from the ordinary practice of judicial review that what it did cannot *136 properly be called judging. My colleagues have offered a reasonable construction of Florida's law. Their construction coincides with the view of one of Florida's seven Supreme Court justices. Gore v. Harris, 772 So. 2d 1243, 1264-1270 (Fla. 2000) (Wells, C. J., dissenting); Palm Beach County Canvassing Bd. v. Harris, 772 So. 2d 1273, 1291-1292 (Fla. 2000) (on remand) (confirming, 6 to 1, the construction of Florida law advanced in Gore ). I might join The Chief Justice were it my commission to interpret Florida law. But disagreement with the Florida court's interpretation of its own State's law does not warrant the conclusion that the justices of that court have legislated. There is no cause here to believe that the members of Florida's high court have done less than "their mortal best to discharge their oath of office," Sumner v. Mata, 449 U.S. 539, 549 (1981), and no cause to upset their reasoned interpretation of Florida law. This Court more than occasionally affirms statutory, and even constitutional, interpretations with which it disagrees. For example, when reviewing challenges to administrative agencies' interpretations of laws they implement, we defer to the agencies unless their interpretation violates "the unambiguously expressed intent of Congress." Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 (1984). We do so in the face of the declaration in Article I of the United States Constitution that "All legislative Powers herein granted shall be vested in a Congress of the United States." Surely the Constitution does not call upon us to pay more respect to a federal administrative agency's construction of federal law than to a state high court's interpretation of its own State's law. And not uncommonly, we let stand state-court interpretations of federal law with which we might disagree. Notably, in the habeas context, the Court adheres to the view that "there is `no intrinsic reason why the fact that a man is a federal judge *137 should make him more competent, or conscientious, or learned with respect to [federal law] than his neighbor in the state courthouse.' " Stone v. Powell, 428 U.S. 465, 494, n. 35 (1976) (quoting Bator, Finality in Criminal Law and Federal Habeas Corpus for State Prisoners, 76 Harv. L. Rev. 441, 509 (1963)); see O'Dell v. Netherland, 521 U.S. 151, 156 (1997) ("[T]he Teague doctrine validates reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions.") (citing Butler v. McKellar, 494 U.S. 407, 414 (1990)); O'Connor, Trends in the Relationship Between the Federal and State Courts from the Perspective of a State Court Judge, 22 Wm. & Mary L. Rev. 801, 813 (1981) ("There is no reason to assume that state court judges cannot and will not provide a `hospitable forum' in litigating federal constitutional questions."). No doubt there are cases in which the proper application of federal law may hinge on interpretations of state law. Unavoidably, this Court must sometimes examine state law in order to protect federal rights. But we have dealt with such cases ever mindful of the full measure of respect we owe to interpretations of state law by a State's highest court. In the Contract Clause case, General Motors Corp. v. Romein, 503 U.S. 181 (1992), for example, we said that although "ultimately we are bound to decide for ourselves whether a contract was made," the Court "accord[s] respectful consideration and great weight to the views of the State's highest court." Id., at 187 (citing Indiana ex rel. Anderson v. Brand, 303 U.S. 95, 100 (1938)). And in Central Union Telephone Co. v. Edwardsville, 269 U.S. 190 (1925), we upheld the Illinois Supreme Court's interpretation of a state waiver rule, even though that interpretation resulted in the forfeiture of federal constitutional rights. Refusing to supplant Illinois law with a federal definition of waiver, *138 we explained that the state court's declaration "should bind us unless so unfair or unreasonable in its application to those asserting a federal right as to obstruct it." Id., at 195.[1] In deferring to state courts on matters of state law, we appropriately recognize that this Court acts as an "`outside[r]' lacking the common exposure to local law which comes from sitting in the jurisdiction." Lehman Brothers v. Schein, 416 U.S. 386, 391 (1974). That recognition has sometimes prompted us to resolve doubts about the meaning of state law by certifying issues to a State's highest court, even when federal rights are at stake. Cf. Arizonans for Official English v. Arizona, 520 U.S. 43, 79 (1997) ("Warnings against premature adjudication of constitutional questions bear heightened attention when a federal court is asked to invalidate a State's law, for the federal tribunal risks friction-generating error when it endeavors to construe a novel state Act not yet reviewed by the State's highest *139 court."). Notwithstanding our authority to decide issues of state law underlying federal claims, we have used the certification device to afford state high courts an opportunity to inform us on matters of their own State's law because such restraint "helps build a cooperative judicial federalism." Lehman Brothers, 416 U. S., at 391. Just last Term, in Fiore v. White, 528 U.S. 23 (1999), we took advantage of Pennsylvania's certification procedure. In that case, a state prisoner brought a federal habeas action claiming that the State had failed to prove an essential element of his charged offense in violation of the Due Process Clause. Id., at 25-26. Instead of resolving the state-law question on which the federal claim depended, we certified the question to the Pennsylvania Supreme Court for that court to "help determine the proper state-law predicate for our determination of the federal constitutional questions raised." Id., at 29; id., at 28 (asking the Pennsylvania Supreme Court whether its recent interpretation of the statute under which Fiore was convicted "was always the statute's meaning, even at the time of Fiore's trial"). The Chief Justice's willingness to reverse the Florida Supreme Court's interpretation of Florida law in this case is at least in tension with our reluctance in Fiore even to interpret Pennsylvania law before seeking instruction from the Pennsylvania Supreme Court. I would have thought the "cautious approach" we counsel when federal courts address matters of state law, Arizonans, 520 U. S., at 77, and our commitment to "build[ing] cooperative judicial federalism," Lehman Brothers, 416 U. S., at 391, demanded greater restraint. Rarely has this Court rejected outright an interpretation of state law by a state high court. Fairfax's Devisee v. Hunter's Lessee, 7 Cranch 603 (1813), NAACP v. Alabama ex rel. Patterson, 357 U.S. 449 (1958), and Bouie v. City of Columbia, 378 U.S. 347 (1964), cited by The Chief Justice, *140 are three such rare instances. See ante, at 114-115, and n. 1. But those cases are embedded in historical contexts hardly comparable to the situation here. Fairfax's Devisee, which held that the Virginia Court of Appeals had misconstrued its own forfeiture laws to deprive a British subject of lands secured to him by federal treaties, occurred amidst vociferous States' rights attacks on the Marshall Court. G. Gunther & K. Sullivan, Constitutional Law 61-62 (13th ed. 1997). The Virginia court refused to obey this Court's Fairfax's Devisee mandate to enter judgment for the British subject's successor in interest. That refusal led to the Court's pathmarking decision in Martin v. Hunter's Lessee, 1 Wheat. 304 (1816). Patterson, a case decided three months after Cooper v. Aaron, 358 U.S. 1 (1958), in the face of Southern resistance to the civil rights movement, held that the Alabama Supreme Court had irregularly applied its own procedural rules to deny review of a contempt order against the NAACP arising from its refusal to disclose membership lists. We said that "our jurisdiction is not defeated if the nonfederal ground relied on by the state court is `without any fair or substantial support.' " 357 U.S., at 455 (quoting Ward v. Board of Commr's of Love Cty., 253 U.S. 17, 22 (1920)). Bouie, stemming from a lunch counter "sit-in" at the height of the civil rights movement, held that the South Carolina Supreme Court's construction of its trespass laws—criminalizing conduct not covered by the text of an otherwise clear statute—was "unforeseeable" and thus violated due process when applied retroactively to the petitioners. 378 U.S., at 350, 354. The Chief Justice's casual citation of these cases might lead one to believe they are part of a larger collection of cases in which we said that the Constitution impelled us to train a skeptical eye on a state court's portrayal of state law. But one would be hard pressed, I think, to find additional cases that fit the mold. As Justice Breyer convincingly explains, see post, at 149-152 (dissenting opinion), this case *141 involves nothing close to the kind of recalcitrance by a state high court that warrants extraordinary action by this Court. The Florida Supreme Court concluded that counting every legal vote was the overriding concern of the Florida Legislature when it enacted the State's Election Code. The court surely should not be bracketed with state high courts of the Jim Crow South. The Chief Justice says that Article II, by providing that state legislatures shall direct the manner of appointing electors, authorizes federal superintendence over the relationship between state courts and state legislatures, and licenses a departure from the usual deference we give to state-court interpretations of state law. Ante, at 115 (concurring opinion) ("To attach definitive weight to the pronouncement of a state court, when the very question at issue is whether the court has actually departed from the statutory meaning, would be to abdicate our responsibility to enforce the explicit requirements of Article II."). The Framers of our Constitution, however, understood that in a republican government, the judiciary would construe the legislature's enactments. See U. S. Const., Art. III; The Federalist No. 78 (A. Hamilton). In light of the constitutional guarantee to States of a "Republican Form of Government," U. S. Const., Art. IV, § 4, Article II can hardly be read to invite this Court to disrupt a State's republican regime. Yet The Chief Justice today would reach out to do just that. By holding that Article II requires our revision of a state court's construction of state laws in order to protect one organ of the State from another, The Chief Justice contradicts the basic principle that a State may organize itself as it sees fit. See, e. g., Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) ("Through the structure of its government, and the character of those who exercise government authority, a State defines itself as a sovereign."); Highland Farms Dairy, Inc. v. Agnew, 300 U.S. 608, 612 (1937) ("How power shall be distributed by a state among its governmental organs is commonly, if not always, a question *142 for the state itself.").[2] Article II does not call for the scrutiny undertaken by this Court. The extraordinary setting of this case has obscured the ordinary principle that dictates its proper resolution: Federal courts defer to a state high court's interpretations of the State's own law. This principle reflects the core of federalism, on which all agree. "The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other." Saenz v. Roe, 526 U.S. 489, 504, n. 17 (1999) (citing U. S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring)). The Chief Justice's solicitude for the Florida Legislature comes at the expense of the more fundamental solicitude we owe to the legislature's sovereign. U. S. Const., Art. II, § 1, cl. 2 ("Each State shall appoint, in such Manner as the Legislature thereof may direct," the electors for President and Vice President (emphasis added)); ante, at 123-124 (Stevens, J., dissenting).[3] Were the other Members of this Court as mindful as they generally are of our system of dual *143 sovereignty, they would affirm the judgment of the Florida Supreme Court. II I agree with Justice Stevens that petitioners have not presented a substantial equal protection claim. Ideally, perfection would be the appropriate standard for judging the recount. But we live in an imperfect world, one in which thousands of votes have not been counted. I cannot agree that the recount adopted by the Florida court, flawed as it may be, would yield a result any less fair or precise than the certification that preceded that recount. See, e. g., McDonald v. Board of Election Comm'rs of Chicago, 394 U.S. 802, 809 (1969) (even in the context of the right to vote, the State is permitted to reform "one step at a time") (citing Williamson v. Lee Optical of Okla., Inc., 348 U.S. 483, 489 (1955)). Even if there were an equal protection violation, I would agree with Justice Stevens, Justice Souter, and Justice Breyer that the Court's concern about the December 12 date, ante, at 110-111, is misplaced. Time is short in part because of the Court's entry of a stay on December 9, several hours after an able circuit judge in Leon County had begun to superintend the recount process. More fundamentally, the Court's reluctance to let the recount go forward—despite its suggestion that "[t]he search for intent can be confined by specific rules designed to ensure uniform treatment," ante, at 106—ultimately turns on its own judgment about the practical realities of implementing a recount, not the judgment of those much closer to the process. Equally important, as Justice Breyer explains, post, at 155 (dissenting opinion), the December 12 date for bringing Florida's electoral votes into 3 U.S. C. § 5's safe harbor lacks the significance the Court assigns it. Were that date to pass, Florida would still be entitled to deliver electoral votes Congress must count unless both Houses find that the votes "ha[d] not been . .. regularly given." 3 U.S. C. § 15. The statute identifies other significant dates. See, e. g., § 7 (specifying *144 December 18 as the date electors "shall meet and give their votes"); § 12 (specifying "the fourth Wednesday in December"—this year, December 27—as the date on which Congress, if it has not received a State's electoral votes, shall request the state secretary of state to send a certified return immediately). But none of these dates has ultimate significance in light of Congress' detailed provisions for determining, on "the sixth day of January," the validity of electoral votes. § 15. The Court assumes that time will not permit "orderly judicial review of any disputed matters that might arise." Ante, at 110. But no one has doubted the good faith and diligence with which Florida election officials,attorneys for all sides of this controversy, and the courts of law have performed their duties. Notably, the Florida Supreme Court has produced two substantial opinions within 29 hours of oral argument. In sum, the Court's conclusion that a constitutionally adequate recount is impractical is a prophecy the Court's own judgment will not allow to be tested. Such an untested prophecy should not decide the Presidency of the United States. I dissent. Justice Breyer, with whom Justice Stevens and Justice Ginsburg join except as to Part I—A-1, and with whom Justice Souter joins as to Part I, dissenting. The Court was wrong to take this case. It was wrong to grant a stay. It should now vacate that stay and permit the Florida Supreme Court to decide whether the recount should resume. I The political implications of this case for the country are momentous. But the federal legal questions presented, with one exception, are insubstantial. *145 A 1 The majority raises three equal protection problems with the Florida Supreme Court's recount order: first, the failure to include overvotes in the manual recount; second, the fact that all ballots, rather than simply the undervotes, were recounted in some, but not all, counties; and third, the absence of a uniform, specific standard to guide the recounts. As far as the first issue is concerned, petitioners presented no evidence, to this Court or to any Florida court, that a manual recount of overvotes would identify additional legal votes. The same is true of the second, and, in addition, the majority's reasoning would seem to invalidate any state provision for a manual recount of individual counties in a statewide election. The majority's third concern does implicate principles of fundamental fairness. The majority concludes that the Equal Protection Clause requires that a manual recount be governed not only by the uniform general standard of the "clear intent of the voter," but also by uniform subsidiary standards (for example, a uniform determination whether indented, but not perforated, "undervotes" should count). The opinion points out that the Florida Supreme Court ordered the inclusion of Broward County's undercounted "legal votes" even though those votes included ballots that were not perforated but simply "dimpled," while newly recounted ballots from other counties will likely include only votes determined to be "legal" on the basis of a stricter standard. In light of our previous remand, the Florida Supreme Court may have been reluctant to adopt a more specific standard than that provided for by the legislature for fear of exceeding its authority under Article II. However, since the use of different standards could favor one or the other of the candidates, since time was, and is, too short to permit the lower courts to iron out significant differences through ordinary *146 judicial review, and since the relevant distinction was embodied in the order of the State's highest court, I agree that, in these very special circumstances, basic principles of fairness should have counseled the adoption of a uniform standard to address the problem. In light of the majority's disposition, I need not decide whether, or the extent to which, as a remedial matter, the Constitution would place limits upon the content of the uniform standard. 2 Nonetheless, there is no justification for the majority's remedy, which is simply to reverse the lower court and halt the recount entirely. An appropriate remedy would be, instead, to remand this case with instructions that, even at this late date, would permit the Florida Supreme Court to require recounting all undercounted votes in Florida, including those from Broward, Volusia, Palm Beach, and MiamiDade Counties, whether or not previously recounted prior to the end of the protest period, and to do so in accordance with a single uniform standard. The majority justifies stopping the recount entirely on the ground that there is no more time. In particular, the majority relies on the lack of time for the Secretary of State (Secretary) to review and approve equipment needed to separate undervotes. But the majority reaches this conclusion in the absence of any record evidence that the recount could not have been completed in the time allowed by the Florida Supreme Court. The majority finds facts outside of the record on matters that state courts are in a far better position to address. Of course, it is too late for any such recount to take place by December 12, the date by which election disputes must be decided if a State is to take advantage of the safe harbor provisions of 3 U.S. C. § 5. Whether there is time to conduct a recount prior to December 18, when the electors are scheduled to meet, is a matter for the state courts to determine. And whether, under Florida law, Florida *147 could or could not take further action is obviously a matter for Florida courts, not this Court, to decide. See ante, at 111 (per curiam). By halting the manual recount, and thus ensuring that the uncounted legal votes will not be counted under any standard, this Court crafts a remedy out of proportion to the asserted harm. And that remedy harms the very fairness interests the Court is attempting to protect. The manual recount would itself redress a problem of unequal treatment of ballots. As Justice Stevens points out, see ante, at 126, and n. 4 (dissenting opinion), the ballots of voters in counties that use punchcard systems are more likely to be disqualified than those in counties using optical-scanning systems. According to recent news reports, variations in the undervote rate are even more pronounced. See Fessenden, No-Vote Rates Higher in Punch Card Count, N. Y. Times, Dec. 1, 2000, p. A29 (reporting that 0.3% of ballots cast in 30 Florida counties using optical-scanning systems registered no Presidential vote, in comparison to 1.53% in the 15 counties using Votomatic punchcard ballots). Thus, in a system that allows counties to use different types of voting systems, voters already arrive at the polls with an unequal chance that their votes will be counted. I do not see how the fact that this results from counties' selection of different voting machines rather than a court order makes the outcome any more fair. Nor do I understand why the Florida Supreme Court's recount order, which helps to redress this inequity, must be entirely prohibited based on a deficiency that could easily be remedied. B The remainder of petitioners' claims, which are the focus of The Chief Justice's concurrence, raise no significant federal questions. I cannot agree that The Chief Justice's unusual review of state law in this case, see ante, at 135-143 (Ginsburg, J., dissenting), is justified by reference either to Art. II, § 1, or to 3 U.S. C. § 5. Moreover, even were such *148 review proper, the conclusion that the Florida Supreme Court's decision contravenes federal law is untenable. While conceding that, in most cases, "comity and respect for federalism compel us to defer to the decisions of state courts on issues of state law," the concurrence relies on some combination of Art. II, § 1, and 3 U.S. C. § 5 to justify its conclusion that this case is one of the few in which we may lay that fundamental principle aside. Ante, at 112 (opinion of Rehnquist, C. J.). The concurrence's primary foundation for this conclusion rests on an appeal to plain text: Art. II, § 1's grant of the power to appoint Presidential electors to the state "Legislature." Ibid. But neither the text of Article II itself nor the only case the concurrence cites that interprets Article II, McPherson v. Blacker, 146 U.S. 1 (1892), leads to the conclusion that Article II grants unlimited power to the legislature, devoid of any state constitutional limitations, to select the manner of appointing electors. See id., at 41 (specifically referring to state constitutional provision in upholding state law regarding selection of electors). Nor, as Justice Stevens points out, have we interpreted the federal constitutional provision most analogous to Art. II, § 1— Art. I, § 4—in the strained manner put forth in the concurrence. Ante, at 123, and n. 1 (dissenting opinion). The concurrence's treatment of § 5 as "inform[ing]" its interpretation of Article II, § 1, cl. 2, ante, at 113 (opinion of Rehnquist, C. J.), is no more convincing. The Chief Justice contends that our opinion in Bush v. Palm Beach County Canvassing Bd., ante, p. 70 (per curiam) (Bush I), in which we stated that "a legislative wish to take advantage of [§ 5] would counsel against" a construction of Florida law that Congress might deem to be a change in law, ante, at 78, now means that this Court "must ensure that post election state-court actions do not frustrate the legislative desire to attain the `safe harbor' provided by § 5." Ante, at 113. However, § 5 is part of the rules that govern Congress' recognition of slates of electors. Nowhere in Bush I did we *149 establish that this Court had the authority to enforce § 5. Nor did we suggest that the permissive "counsel against" could be transformed into the mandatory "must ensure." And nowhere did we intimate, as the concurrence does here, that a state-court decision that threatens the safe harbor provision of § 5 does so in violation of Article II. The concurrence's logic turns the presumption that legislatures would wish to take advantage of § 5's "safe harbor" provision into a mandate that trumps other statutory provisions and overrides the intent that the legislature did express. But, in any event, the concurrence, having conducted its review, now reaches the wrong conclusion. It says that "the Florida Supreme Court's interpretation of the Florida election laws impermissibly distorted them beyond what a fair reading required, in violation of Article II." Ante, at 115 (opinion of Rehnquist, C. J.). But what precisely is the distortion? Apparently, it has three elements. First, the Florida court, in its earlier opinion, changed the election certification date from November 14 to November 26. Second, the Florida court ordered a manual recount of "undercounted" ballots that could not have been fully completed by the December 12 "safe harbor" deadline. Third, the Florida court, in the opinion now under review, failed to give adequate deference to the determinations of canvassing boards and the Secretary. To characterize the first element as a "distortion," however, requires the concurrence to second-guess the way in which the state court resolved a plain conflict in the language of different statutes. Compare Fla. Stat. Ann. § 102.166 (Supp. 2001) (foreseeing manual recounts during the protest period) with § 102.111 (setting what is arguably too short a deadline for manual recounts to be conducted); compare § 102.112(1) (stating that the Secretary "may" ignore late returns) with § 102.111(1) (stating that the Secretary "shall" ignore late returns). In any event, that issue no longer has *150 any practical importance and cannot justify the reversal of the different Florida court decision before us now. To characterize the second element as a "distortion" requires the concurrence to overlook the fact that the inability of the Florida courts to conduct the recount on time is, in significant part, a problem of the Court's own making. The Florida Supreme Court thought that the recount could be completed on time, and, within hours, the Florida Circuit Court was moving in an orderly fashion to meet the deadline. This Court improvidently entered a stay. As a result, we will never know whether the recount could have been completed. Nor can one characterize the third element as "impermissibl[e] distort[ion]" once one understands that there are two sides to the opinion's argument that the Florida Supreme Court "virtually eliminat[ed] the Secretary's discretion." Ante, at 115, 118 (Rehnquist, C. J., concurring). The Florida statute in question was amended in 1999 to provide that the "grounds for contesting an election" include the "rejection of a number of legal votes sufficient to . . . place in doubt the result of the election." Fla. Stat. Ann. §§ 102.168(3), (3)(c) (Supp. 2001). And the parties have argued about the proper meaning of the statute's term "legal vote." The Secretary has claimed that a "legal vote" is a vote "properly executed in accordance with the instructions provided to all registered voters." Brief for Respondent Harris et al. 10. On that interpretation, punchcard ballots for which the machines cannot register a vote are not "legal" votes. Id., at 14. The Florida Supreme Court did not accept her definition. But it had a reason. Its reason was that a different provision of Florida election laws (a provision that addresses damaged or defective ballots) says that no vote shall be disregarded "if there is a clear indication of the intent of the voter as determined by the canvassing board" (adding that ballots should not be counted "if it is impossible to determine the elector's choice"). Fla. Stat. Ann. § 101.5614(5) (Supp. 2001). Given *151 this statutory language, certain roughly analogous judicial precedent, e. g., Darby v. State ex rel. McCollough, 75 So. 411 (Fla. 1917) (per curiam), and somewhat similar determinations by courts throughout the Nation, see cases cited infra, at 152, the Florida Supreme Court concluded that the term "legal vote" means a vote recorded on a ballot that clearly reflects what the voter intended. Gore v. Harris, 772 So. 2d 1243, 1254 (2000). That conclusion differs from the conclusion of the Secretary. But nothing in Florida law requires the Florida Supreme Court to accept as determinative the Secretary's view on such a matter. Nor can one say that the court's ultimate determination is so unreasonable as to amount to a constitutionally "impermissible distort[ion]" of Florida law. The Florida Supreme Court, applying this definition, decided, on the basis of the record, that respondents had shown that the ballots undercounted by the voting machines contained enough "legal votes" to place "the result[s]" of the election "in doubt." Since only a few hundred votes separated the candidates, and since the "undercounted" ballots numbered tens of thousands, it is difficult to see how anyone could find this conclusion unreasonable—however strict the standard used to measure the voter's "clear intent." Nor did this conclusion "strip" canvassing boards of their discretion. The boards retain their traditional discretionary authority during the protest period. And during the contest period, as the court stated, "the Canvassing Board's actions [during the protest period] may constitute evidence that a ballot does or does not qualify as a legal vote." Id., at 1260. Whether a local county canvassing board's discretionary judgment during the protest period not to conduct a manual recount will be set aside during a contest period depends upon whether a candidate provides additional evidence that the rejected votes contain enough "legal votes" to place the outcome of the race in doubt. To limit the local canvassing *152 board's discretion in this way is not to eliminate that discretion. At the least, one could reasonably so believe. The statute goes on to provide the Florida circuit judge with authority to "fashion such orders as he or she deems necessary to ensure that each allegation . . . is investigated, examined, or checked, . . . and to provide any relief appropriate." Fla. Stat. Ann. § 102.168(8) (Supp. 2001) (emphasis added). The Florida Supreme Court did just that. One might reasonably disagree with the Florida Supreme Court's interpretation of these, or other, words in the statute. But I do not see how one could call its plain language interpretation of a 1999 statutory change so misguided as no longer to qualify as judicial interpretation or as a usurpation of the authority of the state legislature. Indeed, other state courts have interpreted roughly similar state statutes in similar ways. See, e. g., In re Election of U. S. Representative for Second Congressional Dist., 231 Conn. 602, 621, 653 A.2d 79, 90-91 (1994) ("Whatever the process used to vote and to count votes, differences in technology should not furnish a basis for disregarding the bedrock principle that the purpose of the voting process is to ascertain the intent of the voters"); Brown v. Carr, 130 W. Va. 455, 460, 43 S.E.2d 401, 404-405 (1947) ("[W]hether a ballot shall be counted . . . depends on the intent of the voter . . . . Courts decry any resort to technical rules in reaching a conclusion as to the intent of the voter"). I repeat, where is the "impermissible" distortion? II Despite the reminder that this case involves "an election for the President of the United States," ante, at 112 (Rehnquist, C. J., concurring), no preeminent legal concern, or practical concern related to legal questions, required this Court to hear this case, let alone to issue a stay that stopped Florida's recount process in its tracks. With one exception, petitioners' claims do not ask us to vindicate a constitutional *153 provision designed to protect a basic human right. See, e. g., Brown v. Board of Education, 347 U.S. 483 (1954). Petitioners invoke fundamental fairness, namely, the need for procedural fairness, including finality. But with the one "equal protection" exception, they rely upon law that focuses, not upon that basic need, but upon the constitutional allocation of power. Respondents invoke a competing fundamental consideration—the need to determine the voter's true intent. But they look to state law, not to federal constitutional law, to protect that interest. Neither side claims electoral fraud, dishonesty, or the like. And the more fundamental equal protection claim might have been left to the state court to resolve if and when it was discovered to have mattered. It could still be resolved through a remand conditioned upon issuance of a uniform standard; it does not require reversing the Florida Supreme Court. Of course, the selection of the President is of fundamental national importance. But that importance is political, not legal. And this Court should resist the temptation unnecessarily to resolve tangential legal disputes, where doing so threatens to determine the outcome of the election. The Constitution and federal statutes themselves make clear that restraint is appropriate. They set forth a roadmap of how to resolve disputes about electors, even after an election as close as this one. That road map foresees resolution of electoral disputes by state courts. See 3 U.S. C. § 5 (providing that, where a "State shall have provided, by laws enacted prior to [election day], for its final determination of any controversy or contest concerning the appointment of. . . electors . . . by judicial or other methods," the subsequently chosen electors enter a safe harbor free from congressional challenge). But it nowhere provides for involvement by the United States Supreme Court. To the contrary, the Twelfth Amendment commits to Congress the authority and responsibility to count electoral votes. A federal statute, the Electoral Count Act, enacted *154 after the close 1876 Hayes-Tilden Presidential election, specifies that, after States have tried to resolve disputes (through "judicial" or other means), Congress is the body primarily authorized to resolve remaining disputes. See Electoral Count Act of 1887, 24 Stat. 373, 3 U.S. C. §§ 5, 6, and 15. The legislative history of the Act makes clear its intent to commit the power to resolve such disputes to Congress, rather than the courts: "The two Houses are, by the Constitution, authorized to make the count of electoral votes. They can only count legal votes, and in doing so must determine, from the best evidence to be had, what are legal votes . .. . . . . . . "The power to determine rests with the two houses, and there is no other constitutional tribunal." H. R. Rep. No. 1638, 49th Cong., 1st Sess., 2 (1886) (report submitted by Rep. Caldwell, Select Committee on the Election of President and Vice-President). The Member of Congress who introduced the Act added: "The power to judge of the legality of the votes is a necessary consequent of the power to count. The existence of this power is of absolute necessity to the preservation of the Government. The interests of all the States in their relations to each other in the Federal Union demand that the ultimate tribunal to decide upon the election of President should be a constituent body, in which the States in their federal relationships and the people in their sovereign capacity should be represented." 18 Cong. Rec. 30 (1886) (remarks of Rep. Caldwell). "Under the Constitution who else could decide? Who is nearer to the State in determining a question of vital importance to the whole union of States than the constituent body upon whom the Constitution has devolved the duty to count the vote?" Id., at 31. *155 The Act goes on to set out rules for the congressional determination of disputes about those votes. If, for example, a State submits a single slate of electors, Congress must count those votes unless both Houses agree that the votes "have not been . . . regularly given." 3 U.S. C. § 15. If, as occurred in 1876, a State submits two slates of electors, then Congress must determine whether a slate has entered the safe harbor of § 5, in which case its votes will have "conclusive" effect. Ibid. If, as also occurred in 1876, there is controversy about "which of two or more of such State authorities . . . is the lawful tribunal" authorized to appoint electors, then each House shall determine separately which votes are "supported by the decision of such State so authorized by its law." Ibid. If the two Houses of Congress agree, the votes they have approved will be counted. If they disagree, then "the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted." Ibid. Given this detailed, comprehensive scheme for counting electoral votes, there is no reason to believe that federal law either foresees or requires resolution of such a political issue by this Court. Nor, for that matter, is there any reason to think that the Constitution's Framers would have reached a different conclusion. Madison, at least, believed that allowing the judiciary to choose the Presidential electors "was out of the question." Madison, July 25, 1787 (reprinted in 5 Elliot's Debates on the Federal Constitution 363 (2d ed. 1876)). The decision by both the Constitution's Framers and the 1886 Congress to minimize this Court's role in resolving close federal Presidential elections is as wise as it is clear. However awkward or difficult it may be for Congress to resolve difficult electoral disputes, Congress, being a political body, expresses the people's will far more accurately than does an unelected Court. And the people's will is what elections are about. *156 Moreover, Congress was fully aware of the danger that would arise should it ask judges, unarmed with appropriate legal standards, to resolve a hotly contested Presidential election contest. Just after the 1876 Presidential election, Florida, South Carolina, and Louisiana each sent two slates of electors to Washington. Without these States, Tilden, the Democrat, had 184 electoral votes, one short of the number required to win the Presidency. With those States, Hayes, his Republican opponent, would have had 185. In order to choose between the two slates of electors, Congress decided to appoint an electoral commission composed of five Senators, five Representatives, and five Supreme Court Justices. Initially the Commission was to be evenly divided between Republicans and Democrats, with Justice David Davis, an Independent, to possess the decisive vote. However, when at the last minute the Illinois Legislature elected Justice Davis to the United States Senate, the final position on the Commission was filled by Supreme Court Justice Joseph P. Bradley. The Commission divided along partisan lines, and the responsibility to cast the deciding vote fell to Justice Bradley. He decided to accept the votes of the Republican electors, and thereby awarded the Presidency to Hayes. Justice Bradley immediately became the subject of vociferous attacks. Bradley was accused of accepting bribes, of being captured by railroad interests, and of an eleventh-hour change in position after a night in which his house "was surrounded by the carriages" of Republican partisans and railroad officials. C. Woodward, Reunion and Reaction 159-160 (1966). Many years later, Professor Bickel concluded that Bradley was honest and impartial. He thought that "`the great question' for Bradley was, in fact, whether Congress was entitled to go behind election returns or had to accept them as certified by state authorities," an "issue of principle." The Least Dangerous Branch 185 (1962). Nonetheless, Bickel points out, the legal question upon which Justice *157 Bradley's decision turned was not very important in the contemporaneous political context. He says that "in the circumstances the issue of principle was trivial, it was overwhelmed by all that hung in the balance, and it should not have been decisive." Ibid. For present purposes, the relevance of this history lies in the fact that the participation in the work of the electoral commission by five Justices, including Justice Bradley, did not lend that process legitimacy. Nor did it assure the public that the process had worked fairly, guided by the law. Rather, it simply embroiled Members of the Court in partisan conflict, thereby undermining respect for the judicial process. And the Congress that later enacted the Electoral Count Act knew it. This history may help to explain why I think it not only legally wrong, but also most unfortunate, for the Court simply to have terminated the Florida recount. Those who caution judicial restraint in resolving political disputes have described the quintessential case for that restraint as a case marked, among other things, by the "strangeness of the issue," its "intractability to principled resolution," its "sheer momentousness, . . . which tends to unbalance judicial judgment," and "the inner vulnerability, the self-doubt of an institution which is electorally irresponsible and has no earth to draw strength from." Id., at 184. Those characteristics mark this case. At the same time, as I have said, the Court is not acting to vindicate a fundamental constitutional principle, such as the need to protect a basic human liberty. No other strong reason to act is present. Congressional statutes tend to obviate the need. And, above all, in this highly politicized matter, the appearance of a split decision runs the risk of undermining the public's confidence in the Court itself. That confidence is a public treasure. It has been built slowly over many years, some of which were marked by a Civil War and the tragedy of segregation. It is a vitally *158 necessary ingredient of any successful effort to protect basic liberty and, indeed, the rule of law itself. We run no risk of returning to the days when a President (responding to this Court's efforts to protect the Cherokee Indians) might have said, "John Marshall has made his decision; now let him enforce it!" D. Loth, Chief Justice John Marshall and The Growth of the American Republic 365 (1948). But we do risk a self-inflicted wound—a wound that may harm not just the Court, but the Nation. I fear that in order to bring this agonizingly long election process to a definitive conclusion, we have not adequately attended to that necessary "check upon our own exercise of power," "our own sense of self-restraint." United States v. Butler, 297 U.S. 1, 79 (1936) (Stone, J., dissenting). Justice Brandeis once said of the Court, "The most important thing we do is not doing." Bickel, supra, at 71. What it does today, the Court should have left undone. I would repair the damage as best we now can, by permitting the Florida recount to continue under uniform standards. I respectfully dissent.

The Court should not have reviewed either Bush v. Palm Beach County Canvassing Bd., ante, p. 70 or this case, and should not have stopped Florida's attempt to recount all undervote ballots, see ante, at 102, by issuing a stay of the Florida Supreme Court's orders during the period of this review, see Bush v. Gore, post, at 1046. If this Court had allowed the State to follow the course indicated by the opinions of its own Supreme Court, it is entirely possible that there would ultimately have been no issue requiring our review, and political tension could have worked itself out in the Congress following the procedure provided in 3 U.S. C. 15. The case being before us, however, its resolution by the majority is another erroneous decision. As will be clear, I am in substantial agreement with the dissenting opinions of Justice Stevens, Justice Ginsburg, and Justice Breyer. I write separately only to say how straightforward the issues before us really are. There are three issues: whether the State Supreme Court's interpretation of the statute providing for a contest of the state election results somehow violates 3 U.S. C. 5; whether that court's construction of the state statutory provisions governing contests impermissibly changes a state from what the State's legislature has provided, in violation of Article II, 1, cl. 2, of the National Constitution; and whether the manner of interpreting markings on disputed ballots failing to cause machines to register votes for President (the undervote ballots) violates the equal protection or *130 due process guaranteed by the Fourteenth Amendment. None of these issues is difficult to describe or to resolve. I The 3 U.S. C. 5 issue is not serious. That provision sets certain conditions for treating a State's certification of Presidential electors as conclusive in the event that a dispute over recognizing those electors must be resolved in the Congress under 3 U.S. C. 15. Conclusiveness requires selection under a legal scheme in place before the election, with results determined at least six days before the date set for casting electoral votes. But no State is required to conform to 5 if it cannot do that (for whatever reason); the sanction for failing to satisfy the conditions of 5 is simply loss of what has been called its "safe harbor." And even that determination is to be made, if made anywhere, in the Congress. II The second matter here goes to the State Supreme Court's interpretation of certain terms in the state statute governing election "contests," Fla. Stat. Ann. 102.168 (Supp. 2001); there is no question here about the state court's interpretation of the related provisions dealing with the antecedent process of "protesting" particular vote counts, 102.166, which was involved in the previous case, Bush v. Palm Beach County Canvassing Bd. The issue is whether the judgment of the State Supreme Court has displaced the state legislature's provisions for election contests: is the as declared by the court different from the provisions made by the legislature, to which the National Constitution commits responsibility for determining how each State's Presidential electors are chosen? See U. S. Const., Art. II, 1, cl. 2. Bush does not, of course, claim that any judicial act interpreting a statute of uncertain meaning is enough to displace the legislative provision and violate Article II; statutes require interpretation, which does not without more affect the legislative character *131 of a statute within the meaning of the Constitution. Brief for Petitioner in Bush v. Palm Beach County Canvassing Bd., O. T. No. 00-836, p. 48, n. What Bush does argue, as I understand the contention, is that the interpretation of 102.168 was so unreasonable as to transcend the accepted bounds of statutory interpretation, to the point of being a nonjudicial act and producing new untethered to the legislative Act in question. The starting point for evaluating the claim that the Florida Supreme Court's interpretation effectively rewrote 102.168 must be the language of the provision on which Gore relies to show his right to raise this contest: that the previously certified result in Bush's favor was produced by "rejection of a number of legal votes sufficient to change or place in doubt the result of the election." Fla. Stat. Ann. 102.168(3)(c) (Supp. 2001). None of the state court's interpretations is unreasonable to the point of displacing the legislative enactment quoted. As I will note below, other interpretations were of course possible, and some might have been better than those adopted by the Florida court's majority; the two dissents from the majority opinion of that court and various briefs submitted to us set out alternatives. But the majority view is in each instance within the bounds of reasonable interpretation, and the as declared is consistent with Article II. 1. The statute does not define a "legal vote," the rejection of which may affect the election. The State Supreme Court was therefore required to define it, and in doing that the court looked to another election statute, 101.5614(5), dealing with damaged or defective ballots, which contains a provision that no vote shall be disregarded "if there is a clear indication of the intent of the voter as determined by the canvassing board." The court read that objective of looking to the voter's intent as indicating that the legislature probably meant "legal vote" to mean a vote recorded on a ballot indicating what the voter intended. It is perfectly true that the majority might have chosen a different reading. See, e. g., Brief for Respondent et al. 10 (defining "legal votes" as "votes properly executed in accordance with the instructions provided to all registered voters in advance of the election and in the polling places"). But even so, there is no constitutional violation in following the majority view; Article II is unconcerned with mere disagreements about interpretive merits. 2. The Florida court next interpreted "rejection" to determine what act in the counting process may be attacked in a contest. Again, the statute does not define the term. The court majority read the word to mean simply a failure to That reading is certainly within the bounds of common sense, given the objective to give effect to a voter's intent if that can be determined. A different reading, of course, is possible. The majority might have concluded that "rejection" should refer to machine malfunction, or that a ballot should not be treated as "reject[ed]" in the absence of wrongdoing by election officials, lest contests be so easy to claim that every election will end up in one. Cf. There is, however, nothing nonjudicial in the Florida majority's more hospitable reading. 3. The same is true about the court majority's understanding of the phrase "votes sufficient to change or place in doubt" the result of the election in Florida. The court held that if the uncounted ballots were so numerous that it was reasonably possible that they contained enough "legal" votes to swing the election, this contest would be authorized by the statute.[*] While the majority might have thought (as *133 the trial judge did) that a probability, not a possibility, should be necessary to justify a contest, that reading is not required by the statute's text, which says nothing about probability. Whatever people of good will and good sense may argue about the merits of the Florida court's reading, there is no warrant for saying that it transcends the limits of reasonable statutory interpretation to the point of supplanting the statute enacted by the "legislature" within the meaning of Article II. In sum, the interpretations by the Florida court raise no substantial question under Article II. That court engaged in permissible construction in determining that Gore had instituted a contest authorized by the state statute, and it proceeded to direct the trial judge to deal with that contest in the exercise of the discretionary powers generously conferred by Fla. Stat. Ann. 102.168(8) (Supp. 2001), to "fashion such orders as he or she deems necessary to ensure that each allegation in the complaint is investigated, examined, or checked, to prevent or correct any alleged wrong, and to provide any relief appropriate under such circumstances." As Justice Ginsburg has persuasively explained in her own dissenting opinion, our customary respect for state interpretations of state counsels against rejection of the Florida court's determinations in this case. III It is only on the third issue before us that there is a meritorious argument for relief, as this Court's per curiam opinion recognizes. It is an issue that might well have been dealt with adequately by the Florida courts if the state proceedings had not been interrupted, and if not disposed of at the state level it could have been considered by the Congress in any electoral vote dispute. But because the course of *134 state proceedings has been interrupted, time is short, and the issue is before us, I think it sensible for the Court to address it. Petitioners have raised an equal protection claim ), in the charge that unjustifiably disparate standards are applied in different electoral jurisdictions to otherwise identical facts. It is true that the Equal Protection Clause does not forbid the use of a variety of voting mechanisms within a jurisdiction, even though different mechanisms will have different levels of effectiveness in recording voters' intentions; local variety can be justified by concerns about cost, the potential value of innovation, and so on. But evidence in the record here suggests that a different order of disparity obtains under rules for determining a voter's intent that have been applied (and could continue to be applied) to identical types of ballots used in identical brands of machines and exhibiting identical physical characteristics (such as "hanging" or "dimpled" chads). See, e. g., Tr. 238-242 (testimony of Palm Beach County Canvassing Board Chairman Judge Charles Burton describing varying standards applied to imperfectly punched ballots in Palm Beach County during precertification manual recount); ; Tr. of Hearing 8-10 (soliciting from county canvassing boards proposed protocols for determining voters' intent but declining to provide a precise, uniform standard). I can conceive of no legitimate state interest served by these differing treatments of the expressions of voters' fundamental rights. The differences appear wholly arbitrary. In deciding what to do about this, we should take account of the fact that electoral votes are due to be cast in six days. I would therefore remand the case to the courts of Florida with instructions to establish uniform standards for evaluating the several types of ballots that have prompted differing *135 treatments, to be applied within and among counties when passing on such identical ballots in any further recounting (or successive recounting) that the courts might order. Unlike the majority, I see no warrant for this Court to assume that Florida could not possibly comply with this requirement before the date set for the meeting of electors, December 18. Although one of the dissenting justices of the State Supreme Court estimated that disparate standards potentially affected 170,000 votes, Gore v. -1273, the number at issue is significantly smaller. The 170,000 figure apparently represents all uncounted votes, both undervotes (those for which no Presidential choice was recorded by a machine) and overvotes (those rejected because of votes for more than one candidate). Tr. of Oral Arg. 61-62. But as Justice Breyer has pointed out, no showing has been made of legal overvotes uncounted, and counsel for Gore made an uncontradicted representation to the Court that the statewide total of undervotes is about 60,000. To recount these manually would be a tall order, but before this Court stayed the effort to do that the courts of Florida were ready to do their best to get that job done. There is no justification for denying the State the opportunity to try to count all disputed ballots now. I respectfully dissent. Justice Ginsburg, with whom Justice Stevens joins, and with whom Justice Souter and Justice Breyer join as to Part I, dissenting. I The Chief Justice acknowledges that provisions of Florida's Election Code "may well admit of more than one interpretation." Ante, at 114 (concurring opinion). But instead of respecting the state high court's province to say what the State's Election Code means, The Chief Justice maintains that Florida's Supreme Court has veered so far from the ordinary practice of judicial review that what it did cannot *136 properly be called judging. My colleagues have offered a reasonable construction of Florida's Their construction coincides with the view of one of Florida's seven Supreme Court justices. Gore v. ; Palm Beach County Canvassing Bd. v. (confirming, 6 to 1, the construction of Florida advanced in Gore ). I might join The Chief Justice were it my commission to interpret Florida But disagreement with the Florida court's interpretation of its own State's does not warrant the conclusion that the justices of that court have legislated. There is no cause here to believe that the members of Florida's high court have done less than "their mortal best to discharge their oath of office," and no cause to upset their reasoned interpretation of Florida This Court more than occasionally affirms statutory, and even constitutional, interpretations with which it disagrees. For example, when reviewing challenges to administrative agencies' interpretations of s they implement, we defer to the agencies unless their interpretation violates "the unambiguously expressed intent of Congress." Chevron U. S. A. We do so in the face of the declaration in Article I of the United States Constitution that "All legislative Powers herein granted shall be vested in a Congress of the United States." Surely the Constitution does not call upon us to pay more respect to a federal administrative agency's construction of federal than to a state high court's interpretation of its own State's And not uncommonly, we let stand state-court interpretations of federal with which we might disagree. Notably, in the habeas context, the Court adheres to the view that "there is `no intrinsic reason why the fact that a man is a federal judge *137 should make him more competent, or conscientious, or learned with respect to [federal ] than his neighbor in the state courthouse.' " ; see ); O'Connor, Trends in the Relationship Between the Federal and State Courts from the Perspective of a State Court Judge, No doubt there are cases in which the proper application of federal may hinge on interpretations of state Unavoidably, this Court must sometimes examine state in order to protect federal rights. But we have dealt with such cases ever mindful of the full measure of respect we owe to interpretations of state by a State's highest court. In the Contract Clause case, General Motors for example, we said that although "ultimately we are bound to decide for ourselves whether a contract was made," the Court "accord[s] respectful consideration and great weight to the views of the State's highest court." at 187 ). And in Central Union Telephone we upheld the Illinois Supreme Court's interpretation of a state waiver rule, even though that interpretation resulted in the forfeiture of federal constitutional rights. Refusing to supplant Illinois with a federal definition of waiver, *138 we explained that the state court's declaration "should bind us unless so unfair or unreasonable in its application to those asserting a federal right as to obstruct it."[1] In deferring to state courts on matters of state we appropriately recognize that this Court acts as an "`outside[r]' lacking the common exposure to local which comes from sitting in the jurisdiction." Lehman That recognition has sometimes prompted us to resolve doubts about the meaning of state by certifying issues to a State's highest court, even when federal rights are at stake. Cf. Arizonans for Official ("Warnings against premature adjudication of constitutional questions bear heightened attention when a federal court is asked to invalidate a State's for the federal tribunal risks friction-generating error when it endeavors to construe a novel state Act not yet reviewed by the State's highest *139 court."). Notwithstanding our authority to decide issues of state underlying federal claims, we have used the certification device to afford state high courts an opportunity to inform us on matters of their own State's because such restraint "helps build a cooperative judicial federalism." Lehman 416 U. S., at Just last Term, in we took advantage of Pennsylvania's certification procedure. In that case, a state prisoner brought a federal habeas action claiming that the State had failed to prove an essential element of his charged offense in violation of the Due Process Clause. Instead of resolving the state- question on which the federal claim depended, we certified the question to the Pennsylvania Supreme Court for that court to "help determine the proper state- predicate for our determination of the federal constitutional questions raised." ; The Chief Justice's willingness to reverse the Florida Supreme Court's interpretation of Florida in this case is at least in tension with our reluctance in Fiore even to interpret Pennsylvania before seeking instruction from the Pennsylvania Supreme Court. I would have thought the "cautious approach" we counsel when federal courts address matters of state Arizonans, and our commitment to "build[ing] cooperative judicial federalism," Lehman 416 U. S., at demanded greater restraint. Rarely has this Court rejected outright an interpretation of state by a state high court. Fairfax's (1), and cited by The Chief Justice, *140 are three such rare instances. See ante, at 114-115, and n. 1. But those cases are embedded in historical contexts hardly comparable to the situation here. Fairfax's Devisee, which held that the Virginia Court of Appeals had misconstrued its own forfeiture s to deprive a British subject of lands secured to him by federal treaties, occurred amidst vociferous States' rights attacks on the Marshall Court. G. Gunther & K. Sullivan, Constitutional Law 61-62 The Virginia court refused to obey this Court's Fairfax's Devisee mandate to enter judgment for the British subject's successor in interest. That refusal led to the Court's pathmarking decision in Patterson, a case decided three months after in the face of Southern resistance to the civil rights movement, held that the Alabama Supreme Court had irregularly applied its own procedural rules to deny review of a contempt order against the NAACP arising from its refusal to disclose membership lists. We said that "our jurisdiction is not defeated if the nonfederal ground relied on by the state court is `without any fair or substantial support.' " ). Bouie, stemming from a lunch counter "sit-in" at the height of the civil rights movement, held that the South Carolina Supreme Court's construction of its trespass s—criminalizing conduct not covered by the text of an otherwise clear statute—was "unforeseeable" and thus violated due process when applied retroactively to the petitioners. 354. The Chief Justice's casual citation of these cases might lead one to believe they are part of a larger collection of cases in which we said that the Constitution impelled us to train a skeptical eye on a state court's portrayal of state But one would be hard pressed, I think, to find additional cases that fit the mold. As Justice Breyer convincingly explains, see post, 9-152 (dissenting opinion), this case *141 involves nothing close to the kind of recalcitrance by a state high court that warrants extraordinary action by this Court. The Florida Supreme Court concluded that counting every legal vote was the overriding concern of the Florida Legislature when it enacted the State's Election Code. The court surely should not be bracketed with state high courts of the Jim Crow South. The Chief Justice says that Article II, by providing that state legislatures shall direct the manner of appointing electors, authorizes federal superintendence over the relationship between state courts and state legislatures, and licenses a departure from the usual deference we give to state-court interpretations of state Ante, at 115 (concurring opinion) ("To attach definitive weight to the pronouncement of a state court, when the very question at issue is whether the court has actually departed from the statutory meaning, would be to abdicate our responsibility to enforce the explicit requirements of Article II."). The Framers of our Constitution, however, understood that in a republican government, the judiciary would construe the legislature's enactments. See U. S. Const., Art. III; The Federalist No. 78 (A. Hamilton). In light of the constitutional guarantee to States of a "Republican Form of Government," U. S. Const., Art. IV, 4, Article II can hardly be read to invite this Court to disrupt a State's republican regime. Yet The Chief Justice today would reach out to do just that. By holding that Article II requires our revision of a state court's construction of state s in order to protect one organ of the State from another, The Chief Justice contradicts the basic principle that a State may organize itself as it sees fit. See, e. g., ; Highland Farms Dairy,[2] Article II does not call for the scrutiny undertaken by this Court. The extraordinary setting of this case has obscured the ordinary principle that dictates its proper resolution: Federal courts defer to a state high court's interpretations of the State's own This principle reflects the core of federalism, on which all agree. "The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected from incursion by the other." ). The Chief Justice's solicitude for the Florida Legislature comes at the expense of the more fundamental solicitude we owe to the legislature's sovereign. U. S. Const., Art. II, 1, cl. 2 ("Each State shall appoint, in such Manner as the Legislature thereof may direct," the electors for President and Vice President ); ante, at 123-124 (Stevens, J., dissenting).[3] Were the other Members of this Court as mindful as they generally are of our system of dual *143 sovereignty, they would affirm the judgment of the Florida Supreme Court. II I agree with Justice Stevens that petitioners have not presented a substantial equal protection claim. Ideally, perfection would be the appropriate standard for judging the re But we live in an imperfect world, one in which thousands of votes have not been counted. I cannot agree that the recount adopted by the Florida court, fed as it may be, would yield a result any less fair or precise than the certification that preceded that re See, e. g., ). Even if there were an equal protection violation, I would agree with Justice Stevens, Justice Souter, and Justice Breyer that the Court's concern about the December 12 date, ante, at 110-111, is misplaced. Time is short in part because of the Court's entry of a stay on December 9, several hours after an able circuit judge in Leon County had begun to superintend the recount process. More fundamentally, the Court's reluctance to let the recount go forward—despite its suggestion that "[t]he search for intent can be confined by specific rules designed to ensure uniform treatment," ante, at 106—ultimately turns on its own judgment about the practical realities of implementing a recount, not the judgment of those much closer to the process. Equally important, as Justice Breyer explains, post, at 155 (dissenting opinion), the December 12 date for bringing Florida's electoral votes into 3 U.S. C. 5's safe harbor lacks the significance the Court assigns it. Were that date to pass, Florida would still be entitled to deliver electoral votes Congress must count unless both Houses find that the votes "ha[d] not been regularly given." 3 U.S. C. 15. The statute identifies other significant dates. See, e. g., 7 (specifying *144 December 18 as the date electors "shall meet and give their votes"); 12 (specifying "the fourth Wednesday in December"—this year, December 27—as the date on which Congress, if it has not received a State's electoral votes, shall request the state secretary of state to send a certified return immediately). But none of these dates has ultimate significance in light of Congress' detailed provisions for determining, on "the sixth day of January," the validity of electoral votes. 15. The Court assumes that time will not permit "orderly judicial review of any disputed matters that might arise." Ante, at 110. But no one has doubted the good faith and diligence with which Florida election officials,attorneys for all sides of this controversy, and the courts of have performed their duties. Notably, the Florida Supreme Court has produced two substantial opinions within 29 hours of oral argument. In sum, the Court's conclusion that a constitutionally adequate recount is impractical is a prophecy the Court's own judgment will not allow to be tested. Such an untested prophecy should not decide the Presidency of the United States. I dissent. Justice Breyer, with whom Justice Stevens and Justice Ginsburg join except as to Part I—A-1, and with whom Justice Souter joins as to Part I, dissenting. The Court was wrong to take this case. It was wrong to grant a stay. It should now vacate that stay and permit the Florida Supreme Court to decide whether the recount should resume. I The political implications of this case for the country are momentous. But the federal legal questions presented, with one exception, are insubstantial. *145 A 1 The majority raises three equal protection problems with the Florida Supreme Court's recount order: first, the failure to include overvotes in the manual recount; second, the fact that all ballots, rather than simply the undervotes, were recounted in some, but not all, counties; and third, the absence of a uniform, specific standard to guide the recounts. As far as the first issue is concerned, petitioners presented no evidence, to this Court or to any Florida court, that a manual recount of overvotes would identify additional legal votes. The same is true of the second, and, in addition, the majority's reasoning would seem to invalidate any state provision for a manual recount of individual counties in a statewide election. The majority's third concern does implicate principles of fundamental fairness. The majority concludes that the Equal Protection Clause requires that a manual recount be governed not only by the uniform general standard of the "clear intent of the voter," but also by uniform subsidiary standards (for example, a uniform determination whether indented, but not perforated, "undervotes" should count). The opinion points out that the Florida Supreme Court ordered the inclusion of Broward County's undercounted "legal votes" even though those votes included ballots that were not perforated but simply "dimpled," while newly recounted ballots from other counties will likely include only votes determined to be "legal" on the basis of a stricter standard. In light of our previous remand, the Florida Supreme Court may have been reluctant to adopt a more specific standard than that provided for by the legislature for fear of exceeding its authority under Article II. However, since the use of different standards could favor one or the other of the candidates, since time was, and is, too short to permit the lower courts to iron out significant differences through ordinary *146 judicial review, and since the relevant distinction was embodied in the order of the State's highest court, I agree that, in these very special circumstances, basic principles of fairness should have counseled the adoption of a uniform standard to address the problem. In light of the majority's disposition, I need not decide whether, or the extent to which, as a remedial matter, the Constitution would place limits upon the content of the uniform standard. 2 Nonetheless, there is no justification for the majority's remedy, which is simply to reverse the lower court and halt the recount entirely. An appropriate remedy would be, instead, to remand this case with instructions that, even at this late date, would permit the Florida Supreme Court to require recounting all undercounted votes in Florida, including those from Broward, Volusia, Palm Beach, and MiamiDade Counties, whether or not previously recounted prior to the end of the protest period, and to do so in accordance with a single uniform standard. The majority justifies stopping the recount entirely on the ground that there is no more time. In particular, the majority relies on the lack of time for the Secretary of State (Secretary) to review and approve equipment needed to separate undervotes. But the majority reaches this conclusion in the absence of any record evidence that the recount could not have been completed in the time allowed by the Florida Supreme Court. The majority finds facts outside of the record on matters that state courts are in a far better position to address. Of course, it is too late for any such recount to take place by December 12, the date by which election disputes must be decided if a State is to take advantage of the safe harbor provisions of 3 U.S. C. 5. Whether there is time to conduct a recount prior to December 18, when the electors are scheduled to meet, is a matter for the state courts to determine. And whether, under Florida Florida *147 could or could not take further action is obviously a matter for Florida courts, not this Court, to decide. See ante, at 111 By halting the manual recount, and thus ensuring that the uncounted legal votes will not be counted under any standard, this Court crafts a remedy out of proportion to the asserted harm. And that remedy harms the very fairness interests the Court is attempting to protect. The manual recount would itself redress a problem of unequal treatment of ballots. As Justice Stevens points out, see ante, at 126, and n. 4 (dissenting opinion), the ballots of voters in counties that use punchcard systems are more likely to be disqualified than those in counties using optical-scanning systems. According to recent news reports, variations in the undervote rate are even more pronounced. See Fessenden, No-Vote Rates Higher in Punch Card Count, N. Y. Times, Dec. 1, p. A29 (reporting that 0.3% of ballots cast in 30 Florida counties using optical-scanning systems registered no Presidential vote, in comparison to 1.53% in the 15 counties using Votomatic punchcard ballots). Thus, in a system that allows counties to use different types of voting systems, voters already arrive at the polls with an unequal chance that their votes will be counted. I do not see how the fact that this results from counties' selection of different voting machines rather than a court order makes the outcome any more fair. Nor do I understand why the Florida Supreme Court's recount order, which helps to redress this inequity, must be entirely prohibited based on a deficiency that could easily be remedied. B The remainder of petitioners' claims, which are the focus of The Chief Justice's concurrence, raise no significant federal questions. I cannot agree that The Chief Justice's unusual review of state in this case, see ante, at 135-143 (Ginsburg, J., dissenting), is justified by reference either to Art. II, 1, or to 3 U.S. C. 5. Moreover, even were such *148 review proper, the conclusion that the Florida Supreme Court's decision contravenes federal is untenable. While conceding that, in most cases, "comity and respect for federalism compel us to defer to the decisions of state courts on issues of state" the concurrence relies on some combination of Art. II, 1, and 3 U.S. C. 5 to justify its conclusion that this case is one of the few in which we may lay that fundamental principle aside. Ante, at 112 (opinion of Rehnquist, C. J.). The concurrence's primary foundation for this conclusion rests on an appeal to plain text: Art. II, 1's grant of the power to appoint Presidential electors to the state "Legislature." But neither the text of Article II itself nor the only case the concurrence cites that interprets Article II, leads to the conclusion that Article II grants unlimited power to the legislature, devoid of any state constitutional limitations, to select the manner of appointing electors. See (specifically referring to state constitutional provision in upholding state regarding selection of electors). Nor, as Justice Stevens points out, have we interpreted the federal constitutional provision most analogous to Art. II, 1— Art. I, 4—in the strained manner put forth in the concurrence. Ante, at 123, and n. 1 (dissenting opinion). The concurrence's treatment of 5 as "inform[ing]" its interpretation of Article II, 1, cl. 2, ante, at 113 (opinion of Rehnquist, C. J.), is no more convincing. The Chief Justice contends that our opinion in Bush v. Palm Beach County Canvassing Bd., ante, p. 70 (Bush I), in which we stated that "a legislative wish to take advantage of [ 5] would counsel against" a construction of Florida that Congress might deem to be a change in ante, at 78, now means that this Court "must ensure that post election state-court actions do not frustrate the legislative desire to attain the `safe harbor' provided by 5." Ante, at 113. However, 5 is part of the rules that govern Congress' recognition of slates of electors. Nowhere in Bush I did we *149 establish that this Court had the authority to enforce 5. Nor did we suggest that the permissive "counsel against" could be transformed into the mandatory "must ensure." And nowhere did we intimate, as the concurrence does here, that a state-court decision that threatens the safe harbor provision of 5 does so in violation of Article II. The concurrence's logic turns the presumption that legislatures would wish to take advantage of 5's "safe harbor" provision into a mandate that trumps other statutory provisions and overrides the intent that the legislature did express. But, in any event, the concurrence, having conducted its review, now reaches the wrong conclusion. It says that "the Florida Supreme Court's interpretation of the Florida election s impermissibly distorted them beyond what a fair reading required, in violation of Article II." Ante, at 115 (opinion of Rehnquist, C. J.). But what precisely is the distortion? Apparently, it has three elements. First, the Florida court, in its earlier opinion, changed the election certification date from November 14 to November 26. Second, the Florida court ordered a manual recount of "undercounted" ballots that could not have been fully completed by the December 12 "safe harbor" deadline. Third, the Florida court, in the opinion now under review, failed to give adequate deference to the determinations of canvassing boards and the Secretary. To characterize the first element as a "distortion," however, requires the concurrence to second-guess the way in which the state court resolved a plain conflict in the language of different statutes. Compare Fla. Stat. Ann. 102.166 (Supp. 2001) with 102.111 (setting what is arguably too short a deadline for manual recounts to be conducted); compare 102.112(1) (stating that the Secretary "may" ignore late returns) with 102.111(1) (stating that the Secretary "shall" ignore late returns). In any event, that issue no longer has *150 any practical importance and cannot justify the reversal of the different Florida court decision before us now. To characterize the second element as a "distortion" requires the concurrence to overlook the fact that the inability of the Florida courts to conduct the recount on time is, in significant part, a problem of the Court's own making. The Florida Supreme Court thought that the recount could be completed on time, and, within hours, the Florida Circuit Court was moving in an orderly fashion to meet the deadline. This Court improvidently entered a stay. As a result, we will never know whether the recount could have been completed. Nor can one characterize the third element as "impermissibl[e] distort[ion]" once one understands that there are two sides to the opinion's argument that the Florida Supreme Court "virtually eliminat[ed] the Secretary's discretion." Ante, at 115, 118 (Rehnquist, C. J., concurring). The Florida statute in question was amended in 1999 to provide that the "grounds for contesting an election" include the "rejection of a number of legal votes sufficient to place in doubt the result of the election." Fla. Stat. Ann. 102.168(3), (3)(c) (Supp. 2001). And the parties have argued about the proper meaning of the statute's term "legal vote." The Secretary has claimed that a "legal vote" is a vote "properly executed in accordance with the instructions provided to all registered voters." Brief for Respondent et al. 10. On that interpretation, punchcard ballots for which the machines cannot register a vote are not "legal" votes. The Florida Supreme Court did not accept her definition. But it had a reason. Its reason was that a different provision of Florida election s (a provision that addresses damaged or defective ballots) says that no vote shall be disregarded "if there is a clear indication of the intent of the voter as determined by the canvassing board" (adding that ballots should not be counted "if it is impossible to determine the elector's choice"). Fla. Stat. Ann. 101.5614(5) (Supp. 2001). Given *151 this statutory language, certain roughly analogous judicial precedent, e. g., and somewhat similar determinations by courts throughout the Nation, see cases cited infra, at 152, the Florida Supreme Court concluded that the term "legal vote" means a vote recorded on a ballot that clearly reflects what the voter intended. Gore v. That conclusion differs from the conclusion of the Secretary. But nothing in Florida requires the Florida Supreme Court to accept as determinative the Secretary's view on such a matter. Nor can one say that the court's ultimate determination is so unreasonable as to amount to a constitutionally "impermissible distort[ion]" of Florida The Florida Supreme Court, applying this definition, decided, on the basis of the record, that respondents had shown that the ballots undercounted by the voting machines contained enough "legal votes" to place "the result[s]" of the election "in doubt." Since only a few hundred votes separated the candidates, and since the "undercounted" ballots numbered tens of thousands, it is difficult to see how anyone could find this conclusion unreasonable—however strict the standard used to measure the voter's "clear intent." Nor did this conclusion "strip" canvassing boards of their discretion. The boards retain their traditional discretionary authority during the protest period. And during the contest period, as the court stated, "the Canvassing Board's actions [during the protest period] may constitute evidence that a ballot does or does not qualify as a legal vote." Whether a local county canvassing board's discretionary judgment during the protest period not to conduct a manual recount will be set aside during a contest period depends upon whether a candidate provides additional evidence that the rejected votes contain enough "legal votes" to place the outcome of the race in doubt. To limit the local canvassing *152 board's discretion in this way is not to eliminate that discretion. At the least, one could reasonably so believe. The statute goes on to provide the Florida circuit judge with authority to "fashion such orders as he or she deems necessary to ensure that each allegation is investigated, examined, or checked, and to provide any relief appropriate." Fla. Stat. Ann. 102.168(8) (Supp. 2001) The Florida Supreme Court did just that. One might reasonably disagree with the Florida Supreme Court's interpretation of these, or other, words in the statute. But I do not see how one could call its plain language interpretation of a 1999 statutory change so misguided as no longer to qualify as judicial interpretation or as a usurpation of the authority of the state legislature. Indeed, other state courts have interpreted roughly similar state statutes in similar ways. See, e. g., In re Election of U. S. Representative for Second Congressional Dist., 653 A.2d ; I repeat, where is the "impermissible" distortion? II Despite the reminder that this case involves "an election for the President of the United States," ante, at 112 (Rehnquist, C. J., concurring), no preeminent legal concern, or practical concern related to legal questions, required this Court to hear this case, let alone to issue a stay that stopped Florida's recount process in its tracks. With one exception, petitioners' claims do not ask us to vindicate a constitutional *153 provision designed to protect a basic human right. See, e. g., Petitioners invoke fundamental fairness, namely, the need for procedural fairness, including finality. But with the one "equal protection" exception, they rely upon that focuses, not upon that basic need, but upon the constitutional allocation of power. Respondents invoke a competing fundamental consideration—the need to determine the voter's true intent. But they look to state not to federal constitutional to protect that interest. Neither side claims electoral fraud, dishonesty, or the like. And the more fundamental equal protection claim might have been left to the state court to resolve if and when it was discovered to have mattered. It could still be resolved through a remand conditioned upon issuance of a uniform standard; it does not require reversing the Florida Supreme Court. Of course, the selection of the President is of fundamental national importance. But that importance is political, not legal. And this Court should resist the temptation unnecessarily to resolve tangential legal disputes, where doing so threatens to determine the outcome of the election. The Constitution and federal statutes themselves make clear that restraint is appropriate. They set forth a roadmap of how to resolve disputes about electors, even after an election as close as this one. That road map foresees resolution of electoral disputes by state courts. See 3 U.S. C. 5 (providing that, where a "State shall have provided, by s enacted prior to [election day], for its final determination of any controversy or contest concerning the appointment of. electors by judicial or other methods," the subsequently chosen electors enter a safe harbor free from congressional challenge). But it nowhere provides for involvement by the United States Supreme Court. To the contrary, the Twelfth Amendment commits to Congress the authority and responsibility to count electoral votes. A federal statute, the Electoral Count Act, enacted *154 after the close 1876 Hayes-Tilden Presidential election, specifies that, after States have tried to resolve disputes (through "judicial" or other means), Congress is the body primarily authorized to resolve remaining disputes. See Electoral Count Act of 1887, 3 U.S. C. 5, 6, and 15. The legislative history of the Act makes clear its intent to commit the power to resolve such disputes to Congress, rather than the courts: "The two Houses are, by the Constitution, authorized to make the count of electoral votes. They can only count legal votes, and in doing so must determine, from the best evidence to be had, what are legal votes "The power to determine rests with the two houses, and there is no other constitutional tribunal." H. R. Rep. No. 1638, 49th Cong., 1st Sess., 2 (1886) (report submitted by Rep. Caldwell, Select Committee on the Election of President and Vice-President). The Member of Congress who introduced the Act added: "The power to judge of the legality of the votes is a necessary consequent of the power to The existence of this power is of absolute necessity to the preservation of the Government. The interests of all the States in their relations to each other in the Federal Union demand that the ultimate tribunal to decide upon the election of President should be a constituent body, in which the States in their federal relationships and the people in their sovereign capacity should be represented." 18 Cong. Rec. 30 (1886) (remarks of Rep. Caldwell). "Under the Constitution who else could decide? Who is nearer to the State in determining a question of vital importance to the whole union of States than the constituent body upon whom the Constitution has devolved the duty to count the vote?" *155 The Act goes on to set out rules for the congressional determination of disputes about those votes. If, for example, a State submits a single slate of electors, Congress must count those votes unless both Houses agree that the votes "have not been regularly given." 3 U.S. C. 15. If, as occurred in 1876, a State submits two slates of electors, then Congress must determine whether a slate has entered the safe harbor of 5, in which case its votes will have "conclusive" effect. If, as also occurred in 1876, there is controversy about "which of two or more of such State authorities is the ful tribunal" authorized to appoint electors, then each House shall determine separately which votes are "supported by the decision of such State so authorized by its" If the two Houses of Congress agree, the votes they have approved will be counted. If they disagree, then "the votes of the electors whose appointment shall have been certified by the executive of the State, under the seal thereof, shall be counted." Given this detailed, comprehensive scheme for counting electoral votes, there is no reason to believe that federal either foresees or requires resolution of such a political issue by this Court. Nor, for that matter, is there any reason to think that the Constitution's Framers would have reached a different conclusion. Madison, at least, believed that allowing the judiciary to choose the Presidential electors "was out of the question." Madison, July 25, 1787 (reprinted in 5 Elliot's Debates on the Federal Constitution 363 (2d ed. 1876)). The decision by both the Constitution's Framers and the 1886 Congress to minimize this Court's role in resolving close federal Presidential elections is as wise as it is clear. However awkward or difficult it may be for Congress to resolve difficult electoral disputes, Congress, being a political body, expresses the people's will far more accurately than does an unelected Court. And the people's will is what elections are about. * Moreover, Congress was fully aware of the danger that would arise should it ask judges, unarmed with appropriate legal standards, to resolve a hotly contested Presidential election contest. Just after the 1876 Presidential election, Florida, South Carolina, and Louisiana each sent two slates of electors to Washington. Without these States, Tilden, the Democrat, had 184 electoral votes, one short of the number required to win the Presidency. With those States, Hayes, his Republican opponent, would have had 185. In order to choose between the two slates of electors, Congress decided to appoint an electoral commission composed of five Senators, five Representatives, and five Supreme Court Justices. Initially the Commission was to be evenly divided between Republicans and Democrats, with Justice David Davis, an Independent, to possess the decisive vote. However, when at the last minute the Illinois Legislature elected Justice Davis to the United States Senate, the final position on the Commission was filled by Supreme Court Justice Joseph P. Bradley. The Commission divided along partisan lines, and the responsibility to cast the deciding vote fell to Justice Bradley. He decided to accept the votes of the Republican electors, and thereby awarded the Presidency to Hayes. Justice Bradley immediately became the subject of vociferous attacks. Bradley was accused of accepting bribes, of being captured by railroad interests, and of an eleventh-hour change in position after a night in which his house "was surrounded by the carriages" of Republican partisans and railroad officials. C. Woodward, Reunion and Reaction 159-160 (1966). Many years later, Professor concluded that Bradley was honest and impartial. He thought that "`the great question' for Bradley was, in fact, whether Congress was entitled to go behind election returns or had to accept them as certified by state authorities," an "issue of principle." The Least Dangerous Branch 185 (1962). Nonetheless, points out, the legal question upon which Justice *157 Bradley's decision turned was not very important in the contemporaneous political context. He says that "in the circumstances the issue of principle was trivial, it was overwhelmed by all that hung in the balance, and it should not have been decisive." For present purposes, the relevance of this history lies in the fact that the participation in the work of the electoral commission by five Justices, including Justice Bradley, did not lend that process legitimacy. Nor did it assure the public that the process had worked fairly, guided by the Rather, it simply embroiled Members of the Court in partisan conflict, thereby undermining respect for the judicial process. And the Congress that later enacted the Electoral Count Act knew it. This history may help to explain why I think it not only legally wrong, but also most unfortunate, for the Court simply to have terminated the Florida re Those who caution judicial restraint in resolving political disputes have described the quintessential case for that restraint as a case marked, among other things, by the "strangeness of the issue," its "intractability to principled resolution," its "sheer momentousness, which tends to unbalance judicial judgment," and "the inner vulnerability, the self-doubt of an institution which is electorally irresponsible and has no earth to draw strength from." Those characteristics mark this case. At the same time, as I have said, the Court is not acting to vindicate a fundamental constitutional principle, such as the need to protect a basic human liberty. No other strong reason to act is present. Congressional statutes tend to obviate the need. And, above all, in this highly politicized matter, the appearance of a split decision runs the risk of undermining the public's confidence in the Court itself. That confidence is a public treasure. It has been built slowly over many years, some of which were marked by a Civil War and the tragedy of segregation. It is a vitally *158 necessary ingredient of any successful effort to protect basic liberty and, indeed, the rule of itself. We run no risk of returning to the days when a President (responding to this Court's efforts to protect the Cherokee Indians) might have said, "John Marshall has made his decision; now let him enforce it!" D. Loth, Chief Justice John Marshall and The Growth of the American Republic 365 (1948). But we do risk a self-inflicted wound—a wound that may harm not just the Court, but the Nation. I fear that in order to bring this agonizingly long election process to a definitive conclusion, we have not adequately attended to that necessary "check upon our own exercise of power," "our own sense of self-restraint." United Justice Brandeis once said of the Court, "The most important thing we do is not doing." What it does today, the Court should have left undone. I would repair the damage as best we now can, by permitting the Florida recount to continue under uniform standards. I respectfully dissent.

Justice O'Connor

majority

SEC v. Edwards

2004-01-13

https://www.courtlistener.com/opinion/131152/sec-v-edwards/

https://www.courtlistener.com/api/rest/v3/clusters/131152/

2003-021

"Opportunity doesn't always knock . . . sometimes it rings." App. 113 (ETS Payphones promotional brochure). And sometimes it hangs up. So it did for the 10,000 people who invested a total of $300 million in the payphone sale-and-leaseback arrangements touted by respondent under that slogan. The Securities and Exchange Commission (SEC) argues that the arrangements were investment contracts, and thus were subject to regulation under the federal securities laws. In this case, we must decide whether a moneymaking scheme is excluded from the term "investment contract" simply because the scheme offered a contractual entitlement to a fixed, rather than a variable, return. I Respondent Charles Edwards was the chairman, chief executive officer, and sole shareholder of ETS Payphones, Inc. (ETS).[†] ETS, acting partly through a subsidiary also controlled by respondent, sold payphones to the public via independent distributors. The payphones were offered packaged with a site lease, a 5-year leaseback and management agreement, and a buyback agreement. All but a tiny fraction of purchasers chose this package, although other management options were offered. The purchase price for the payphone packages was approximately $7,000. Under the leaseback and management agreement, purchasers received $82 per month, a 14% annual return. Purchasers were not involved in the day-to-day operation of the payphones they owned. ETS selected the site for the phone, installed the *392 equipment, arranged for connection and long-distance service, collected coin revenues, and maintained and repaired the phones. Under the buyback agreement, ETS promised to refund the full purchase price of the package at the end of the lease or within 180 days of a purchaser's request. In its marketing materials and on its website, ETS trumpeted the "incomparable pay phone" as "an exciting business opportunity," in which recent deregulation had "open[ed] the door for profits for individual pay phone owners and operators." According to ETS, "[v]ery few business opportunities can offer the potential for ongoing revenue generation that is available in today's pay telephone industry." App. 114-115 (ETS brochure); id., at 227 (ETS website); see id., at 13 (Complaint ¶¶ 37-38). The payphones did not generate enough revenue for ETS to make the payments required by the leaseback agreements, so the company depended on funds from new investors to meet its obligations. In September 2000, ETS filed for bankruptcy protection. The SEC brought this civil enforcement action the same month. It alleged that respondent and ETS had violated the registration requirements of §§ 5(a) and (c) of the Securities Act of 1933, 68 Stat. 684, 15 U.S. C. §§ 77e(a), (c), the antifraud provisions of both § 17(a) of the Securities Act of 1933, 114 Stat. 2763A-452, 15 U.S. C. § 77q(a), and § 10(b) of the Securities Exchange Act of 1934, 48 Stat. 891, as amended, 114 Stat. 2763A-454, 15 U.S. C. § 78j(b), and Rule 10b-5 thereunder, 17 CFR § 240.10b-5 (2003). The District Court concluded that the payphone sale-and-leaseback arrangement was an investment contract within the meaning of, and therefore was subject to, the federal securities laws. SEC v. ETS Payphones, Inc., 123 F. Supp. 2d 1349 (ND Ga. 2000). The Court of Appeals reversed. 300 F.3d 1281 (CA11 2002) (per curiam). It held that respondent's scheme was not an investment contract, on two grounds. First, it read this Court's opinions to require that an investment contract offer either capital appreciation *393 or a participation in the earnings of the enterprise, and thus to exclude schemes, such as respondent's, offering a fixed rate of return. Id., at 1284-1285. Second, it held that our opinions' requirement that the return on the investment be "derived solely from the efforts of others" was not satisfied when the purchasers had a contractual entitlement to the return. Id., at 1285. We conclude that it erred on both grounds. II "Congress' purpose in enacting the securities laws was to regulate investments, in whatever form they are made and by whatever name they are called." Reves v. Ernst & Young, 494 U.S. 56, 61 (1990). To that end, it enacted a broad definition of "security," sufficient "to encompass virtually any instrument that might be sold as an investment." Ibid. Section 2(a)(1) of the 1933 Act, 15 U.S. C. § 77b(a)(1), and § 3(a)(10) of the 1934 Act, 15 U.S. C. § 78c(a)(10), in slightly different formulations which we have treated as essentially identical in meaning, Reves, supra, at 61, n. 1, define "security" to include "any note, stock, treasury stock, security future, bond, debenture, . . . investment contract, . . . [or any] instrument commonly known as a `security.'" "Investment contract" is not itself defined. The test for whether a particular scheme is an investment contract was established in our decision in SEC v. W. J. Howey Co., 328 U.S. 293 (1946). We look to "whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others." Id., at 301. This definition "embodies a flexible rather than a static principle, one that is capable of adaptation to meet the countless and variable schemes devised by those who seek the use of the money of others on the promise of profits." Id., at 299. In reaching that result, we first observed that when Congress included "investment contract" in the definition of security, it "was using a term the meaning of which had been *394 crystallized" by the state courts' interpretation of their "`blue sky'" laws. Id., at 298. (Those laws were the precursors to federal securities regulation and were so named, it seems, because they were "aimed at promoters who `would sell building lots in the blue sky in fee simple.'" 1 L. Loss & J. Seligman, Securities Regulation 36, 31-43 (3d ed. 1998) (quoting Mulvey, Blue Sky Law, 36 Can. L. Times 37 (1916)).) The state courts had defined an investment contract as "a contract or scheme for `the placing of capital or laying out of money in a way intended to secure income or profit from its employment,'" and had "uniformly applied" that definition to "a variety of situations where individuals were led to invest money in a common enterprise with the expectation that they would earn a profit solely through the efforts of the promoter or [a third party]." Howey, supra, at 298 (quoting State v. Gopher Tire & Rubber Co., 146 Minn. 52, 56, 177 N.W. 937, 938 (1920)). Thus, when we held that "profits" must "come solely from the efforts of others," we were speaking of the profits that investors seek on their investment, not the profits of the scheme in which they invest. We used "profits" in the sense of income or return, to include, for example, dividends, other periodic payments, or the increased value of the investment. There is no reason to distinguish between promises of fixed returns and promises of variable returns for purposes of the test, so understood. In both cases, the investing public is attracted by representations of investment income, as purchasers were in this case by ETS' invitation to "`watch the profits add up.'" App. 13 (Complaint ¶ 38). Moreover, investments pitched as low risk (such as those offering a "guaranteed" fixed return) are particularly attractive to individuals more vulnerable to investment fraud, including older and less sophisticated investors. See 2 S. Rep. No. 102-261, App., p. 326 (1992) (Staff Summary of Federal Trade Commission Activities Affecting Older Consumers). Under the reading respondent advances, unscrupulous marketers of investments *395 could evade the securities laws by picking a rate of return to promise. We will not read into the securities laws a limitation not compelled by the language that would so undermine the laws' purposes. Respondent protests that including investment schemes promising a fixed return among investment contracts conflicts with our precedent. We disagree. No distinction between fixed and variable returns was drawn in the blue sky law cases that the Howey Court used, in formulating the test, as its evidence of Congress' understanding of the term. 328 U.S., at 298, and n. 4. Indeed, two of those cases involved an investment contract in which a fixed return was promised. People v. White, 124 Cal. App. 548, 550-551, 12 P.2d 1078, 1079 (1932) (agreement between defendant and investors stated that investor would give defendant $5,000, and would receive $7,500 from defendant one year later); Stevens v. Liberty Packing Corp., 111 N. J. Eq. 61, 62-63, 161 A. 193, 193-194 (1932) ("ironclad contract" offered by defendant to investors entitled investors to $56 per year for 10 years on initial investment of $175, ostensibly in sale-and-leaseback of breeding rabbits). None of our post-Howey decisions is to the contrary. In United Housing Foundation, Inc. v. Forman, 421 U.S. 837 (1975), we considered whether "shares" in a nonprofit housing cooperative were investment contracts under the securities laws. We identified the "touchstone" of an investment contract as "the presence of an investment in a common venture premised on a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others," and then laid out two examples of investor interests that we had previously found to be "profits." Id., at 852. Those were "capital appreciation resulting from the development of the initial investment" and "participation in earnings resulting from the use of investors' funds." Ibid. We contrasted those examples, in which "the investor is `attracted solely by the prospects of a return'" on the investment, with *396 housing cooperative shares, regarding which the purchaser "is motivated by a desire to use or consume the item purchased." Id., at 852-853 (quoting Howey, supra, at 300). Thus, Forman supports the commonsense understanding of "profits" in the Howey test as simply "financial returns on . . . investments." 421 U.S., at 853. Concededly, Forman's illustrative description of prior decisions on "profits" appears to have been mistaken for an exclusive list in a case considering the scope of a different term in the definition of a security, "note." See Reves, 494 U. S., at 68, n. 4. But that was a misreading of Forman, and we will not bind ourselves unnecessarily to passing dictum that would frustrate Congress' intent to regulate all of the "countless and variable schemes devised by those who seek the use of the money of others on the promise of profits." Howey, supra, at 299. Given that respondent's position is supported neither by the purposes of the securities laws nor by our precedents, it is no surprise that the SEC has consistently taken the opposite position, and maintained that a promise of a fixed return does not preclude a scheme from being an investment contract. It has done so in formal adjudications, e. g., In re Abbett, Sommer & Co., 44 S.E. C. 104 (1969) (holding that mortgage notes, sold with a package of management services and a promise to repurchase the notes in the event of default, were investment contracts); see also In re Union Home Loans (Dec. 16, 1982), 26 S.E. C. Docket 1517, 1519 (report and order regarding settlement, stating that sale of promissory notes secured by deeds of trust, coupled with management services and providing investors "a specified percentage return on their investment," were investment contracts), and in enforcement actions, e. g., SEC v. Universal Service Assn., 106 F.2d 232, 234, 237 (CA7 1939) (accepting SEC's position that an investment scheme promising "assured profit of 30% per annum with no chance of risk or loss to the contributor" was a security because it satisfied the pertinent *397 substance of the Howey test, "`[t]he investment of money with the expectation of profit through the efforts of other persons'"); see also SEC v. American Trailer Rentals Co., 379 U.S. 594, 598 (1965) (noting that "the SEC advised" the respondent that its "sale and lease-back arrangements," in which investors received "a set 2% of their investment per month for 10 years," "were investment contracts and therefore securities" under the 1933 Act). The Eleventh Circuit's perfunctory alternative holding, that respondent's scheme falls outside the definition because purchasers had a contractual entitlement to a return, is incorrect and inconsistent with our precedent. We are considering investment contracts. The fact that investors have bargained for a return on their investment does not mean that the return is not also expected to come solely from the efforts of others. Any other conclusion would conflict with our holding that an investment contract was offered in Howey itself. 328 U.S., at 295-296 (service contract entitled investors to allocation of net profits). We hold that an investment scheme promising a fixed rate of return can be an "investment contract" and thus a "security" subject to the federal securities laws. The judgment of the United States Court of Appeals for the Eleventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

"Opportunity doesn't always knock sometimes it rings." App. 113 (ETS Payphones promotional brochure). And sometimes it hangs up. So it did for the 10,000 people who invested a total of $300 million in the payphone sale-and-leaseback arrangements touted by respondent under that slogan. The Securities and Exchange Commission (SEC) argues that the arrangements were investment contracts, and thus were subject to regulation under the federal securities laws. In this case, we must decide whether a moneymaking scheme is excluded from the term "investment contract" simply because the scheme offered a contractual entitlement to a fixed, rather than a variable, return. I Respondent Charles Edwards was the chairman, chief executive officer, and sole shareholder of ETS Payphones, Inc. (ETS).[†] ETS, acting partly through a subsidiary also controlled by respondent, sold payphones to the public via independent distributors. The payphones were offered packaged with a site lease, a 5-year leaseback and management agreement, and a buyback agreement. All but a tiny fraction of purchasers chose this package, although other management options were offered. The purchase price for the payphone packages was approximately $7,000. Under the leaseback and management agreement, purchasers received $82 per month, a 14% annual return. Purchasers were not involved in the day-to-day operation of the payphones they owned. ETS selected the site for the phone, installed the *392 equipment, arranged for connection and long-distance service, collected coin revenues, and maintained and repaired the phones. Under the buyback agreement, ETS promised to refund the full purchase price of the package at the end of the lease or within 180 days of a purchaser's request. In its marketing materials and on its website, ETS trumpeted the "incomparable pay phone" as "an exciting business opportunity," in which recent deregulation had "open[ed] the door for profits for individual pay phone owners and operators." According to ETS, "[v]ery few business opportunities can offer the potential for ongoing revenue generation that is available in today's pay telephone industry." App. 114-115 (ETS brochure); ; see The payphones did not generate enough revenue for ETS to make the payments required by the leaseback agreements, so the company depended on funds from new investors to meet its obligations. In September ETS filed for bankruptcy protection. The SEC brought this civil enforcement action the same month. It alleged that respondent and ETS had violated the registration requirements of 5(a) and (c) of the Securities Act of 1933, 15 U.S. C. 77e(a), (c), the antifraud provisions of both 17(a) of the Securities Act of 1933, 114 Stat. 2763A-452, 15 U.S. C. 77q(a), and 10(b) of the Securities Exchange Act of 1934, as amended, 114 Stat. 2763A-454, 15 U.S. C. 78j(b), and Rule 10b-5 thereunder, 17 CFR 240.10b-5 (2003). The District Court concluded that the payphone sale-and-leaseback arrangement was an investment contract within the meaning of, and therefore was subject to, the federal securities laws. The Court of Appeals reversed. It held that respondent's scheme was not an investment contract, on two grounds. First, it read this Court's opinions to require that an investment contract offer either capital appreciation *393 or a participation in the earnings of the enterprise, and thus to exclude schemes, such as respondent's, offering a fixed rate of return. Second, it held that our opinions' requirement that the return on the investment be "derived solely from the efforts of others" was not satisfied when the purchasers had a contractual entitlement to the return. We conclude that it erred on both grounds. II "Congress' purpose in enacting the securities laws was to regulate investments, in whatever form they are made and by whatever name they are called." To that end, it enacted a broad definition of "security," sufficient "to encompass virtually any instrument that might be sold as an investment." Section 2(a)(1) of the 1933 Act, 15 U.S. C. 77b(a)(1), and 3(a)(10) of the 1934 Act, 15 U.S. C. 78c(a)(10), in slightly different formulations which we have treated as essentially identical in meaning, at n. 1, define "security" to include "any note, stock, treasury stock, security future, bond, debenture, investment contract, [or any] instrument commonly known as a `security.'" "Investment contract" is not itself defined. The test for whether a particular scheme is an investment contract was established in our decision in We look to "whether the scheme involves an investment of money in a common enterprise with profits to come solely from the efforts of others." This definition "embodies a flexible rather than a static principle, one that is capable of adaptation to meet the countless and variable schemes devised by those who seek the use of the money of others on the promise of profits." In reaching that result, we first observed that when Congress included "investment contract" in the definition of security, it "was using a term the meaning of which had been *394 crystallized" by the state courts' interpretation of their "`blue sky'" laws. (Those laws were the precursors to federal securities regulation and were so named, it seems, because they were "aimed at promoters who `would sell building lots in the blue sky in fee simple.'" 1 L. Loss & J. Seligman, Securities Regulation 36, 31-43 (3d ed. 1998) (quoting Mulvey, Blue Sky Law, 36 Can. L. Times 37 (1916)).) The state courts had defined an investment contract as "a contract or scheme for `the placing of capital or laying out of money in a way intended to secure income or profit from its employment,'" and had "uniformly applied" that definition to "a variety of situations where individuals were led to invest money in a common enterprise with the expectation that they would earn a profit solely through the efforts of the promoter or [a third party]." ). Thus, when we held that "profits" must "come solely from the efforts of others," we were speaking of the profits that investors seek on their investment, not the profits of the scheme in which they invest. We used "profits" in the sense of income or return, to include, for example, dividends, other periodic payments, or the increased value of the investment. There is no reason to distinguish between promises of fixed returns and promises of variable returns for purposes of the test, so understood. In both cases, the investing public is attracted by representations of investment income, as purchasers were in this case by ETS' invitation to "`watch the profits add up.'" App. 13 (Complaint ¶ 38). Moreover, investments pitched as low risk (such as those offering a "guaranteed" fixed return) are particularly attractive to individuals more vulnerable to investment fraud, including older and less sophisticated investors. See 2 S. Rep. No. 102-2, App., p. 326 (1992) (Staff Summary of Federal Trade Commission Activities Affecting Older Consumers). Under the reading respondent advances, unscrupulous marketers of investments *395 could evade the securities laws by picking a rate of return to promise. We will not read into the securities laws a limitation not compelled by the language that would so undermine the laws' purposes. Respondent protests that including investment schemes promising a fixed return among investment contracts conflicts with our precedent. We disagree. No distinction between fixed and variable returns was drawn in the blue sky law cases that the Court used, in formulating the test, as its evidence of Congress' understanding of the term. 328 U.S., and n. 4. Indeed, two of those cases involved an investment contract in which a fixed return was promised. ; Stevens v. Liberty Packing Corp., 111 N. J. Eq. 62-63, 1 A. 193, ("ironclad contract" offered by defendant to investors entitled investors to $ per year for 10 years on initial investment of $175, ostensibly in sale-and-leaseback of breeding rabbits). None of our post- decisions is to the contrary. In United Housing Foundation, we considered whether "shares" in a nonprofit housing cooperative were investment contracts under the securities laws. We identified the "touchstone" of an investment contract as "the presence of an investment in a common venture premised on a reasonable expectation of profits to be derived from the entrepreneurial or managerial efforts of others," and then laid out two examples of investor interests that we had previously found to be "profits." Those were "capital appreciation resulting from the development of the initial investment" and "participation in earnings resulting from the use of investors' funds." We contrasted those examples, in which "the investor is `attracted solely by the prospects of a return'" on the investment, with *396 housing cooperative shares, regarding which the purchaser "is motivated by a desire to use or consume the item purchased." -853 (quoting ). Thus, Forman supports the commonsense understanding of "profits" in the test as simply "financial returns on investments." Concededly, Forman's illustrative description of prior decisions on "profits" appears to have been mistaken for an exclusive list in a case considering the scope of a different term in the definition of a security, "note." See n. 4. But that was a misreading of Forman, and we will not bind ourselves unnecessarily to passing dictum that would frustrate Congress' intent to regulate all of the "countless and variable schemes devised by those who seek the use of the money of others on the promise of profits." Given that respondent's position is supported neither by the purposes of the securities laws nor by our precedents, it is no surprise that the SEC has consistently taken the opposite position, and maintained that a promise of a fixed return does not preclude a scheme from being an investment contract. It has done so in formal adjudications, e. g., In re Abbett, Sommer & Co., 44 S.E. C. 104 (1969) (holding that mortgage notes, sold with a package of management services and a promise to repurchase the notes in the event of default, were investment contracts); see also In re Union Home Loans (Dec. 16, 1982), 26 S.E. C. Docket 1517, 1519 (report and order regarding settlement, stating that sale of promissory notes secured by deeds of trust, coupled with management services and providing investors "a specified percentage return on their investment," were investment contracts), and in enforcement actions, e. g., (accepting SEC's position that an investment scheme promising "assured profit of 30% per annum with no chance of risk or loss to the contributor" was a security because it satisfied the pertinent *397 substance of the test, "`[t]he investment of money with the expectation of profit through the efforts of other persons'"); see also The Eleventh Circuit's perfunctory alternative holding, that respondent's scheme falls outside the definition because purchasers had a contractual entitlement to a return, is incorrect and inconsistent with our precedent. We are considering investment contracts. The fact that investors have bargained for a return on their investment does not mean that the return is not also expected to come solely from the efforts of others. Any other conclusion would conflict with our holding that an investment contract was offered in itself. -296 We hold that an investment scheme promising a fixed rate of return can be an "investment contract" and thus a "security" subject to the federal securities laws. The judgment of the United States Court of Appeals for the Eleventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Justice Ginsburg

majority

Exxon Mobil Corp. v. Saudi Basic Industries Corp.

2005-03-30

https://www.courtlistener.com/opinion/142885/exxon-mobil-corp-v-saudi-basic-industries-corp/

https://www.courtlistener.com/api/rest/v3/clusters/142885/

2004-037

This case concerns what has come to be known as the Rooker-Feldman doctrine, applied by this Court only twice, first in Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), then, 60 years later, in District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). Variously interpreted in the lower courts, the doctrine has sometimes been construed to extend far beyond the contours of the Rooker and Feldman cases, overriding Congress' conferral of federal-court jurisdiction concurrent with jurisdiction exercised by state courts, and superseding the ordinary application of preclusion law pursuant to 28 U.S. C. § 1738. See, e. g., Moccio v. New York State Office of Court Admin., 95 F.3d 195, 199-200 (CA2 1996). Rooker was a suit commenced in Federal District Court to have a judgment of a state court, adverse to the federal court plaintiffs, "declared null and void." 263 U.S., at 414. In Feldman, parties unsuccessful in the District of Columbia Court of Appeals (the District's highest court) commenced a federal-court action against the very court that had rejected their applications. Holding the federal suits impermissible, we emphasized that appellate jurisdiction to reverse or modify a state-court judgment is lodged, initially by § 25 of the Judiciary Act of 1789, 1 Stat. 85, and now by 28 U.S. C. § 1257, exclusively in this Court. Federal district courts, we noted, are empowered to exercise original, not appellate, jurisdiction. Plaintiffs in Rooker and Feldman had litigated and lost in state court. Their federal complaints, we observed, essentially invited federal courts of first instance to review and reverse unfavorable state-court judgments. We *284 declared such suits out of bounds, i. e., properly dismissed for want of subject-matter jurisdiction. The Rooker-Feldman doctrine, we hold today, is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments. Rooker-Feldman does not otherwise override or supplant preclusion doctrine or augment the circumscribed doctrines that allow federal courts to stay or dismiss proceedings in deference to state-court actions. In the case before us, the Court of Appeals for the Third Circuit misperceived the narrow ground occupied by Rooker-Feldman, and consequently erred in ordering the federal action dismissed for lack of subject-matter jurisdiction. We therefore reverse the Third Circuit's judgment. I In Rooker v. Fidelity Trust Co., 263 U.S. 413, the parties defeated in state court turned to a Federal District Court for relief. Alleging that the adverse state-court judgment was rendered in contravention of the Constitution, they asked the federal court to declare it "null and void." Id., at 414-415. This Court noted preliminarily that the state court had acted within its jurisdiction. Id., at 415. If the state-court decision was wrong, the Court explained, "that did not make the judgment void, but merely left it open to reversal or modification in an appropriate and timely appellate proceeding." Ibid. Federal district courts, the Rooker Court recognized, lacked the requisite appellate authority, for their jurisdiction was "strictly original." Id., at 416. Among federal courts, the Rooker Court clarified, Congress had empowered only this Court to exercise appellate authority "to reverse or modify" a state-court judgment. Ibid. *285 Accordingly, the Court affirmed a decree dismissing the suit for lack of jurisdiction. Id., at 415, 417. Sixty years later, the Court decided District of Columbia Court of Appeals v. Feldman, 460 U.S. 462. The two plaintiffs in that case, Hickey and Feldman, neither of whom had graduated from an accredited law school, petitioned the District of Columbia Court of Appeals to waive a court Rule that required D. C. bar applicants to have graduated from a law school approved by the American Bar Association. After the D. C. court denied their waiver requests, Hickey and Feldman filed suits in the United States District Court for the District of Columbia. Id., at 465-473. The District Court and the Court of Appeals for the District of Columbia Circuit disagreed on the question whether the federal suit could be maintained, and we granted certiorari. Id., at 474-475. Recalling Rooker, this Court's opinion in Feldman observed first that the District Court lacked authority to review a final judicial determination of the D. C. high court. "Review of such determinations," the Feldman opinion reiterated, "can be obtained only in this Court." 460 U.S., at 476. The "crucial question," the Court next stated, was whether the proceedings in the D. C. court were "judicial in nature." Ibid. Addressing that question, the Court concluded that the D. C. court had acted both judicially and legislatively. In applying the accreditation Rule to the Hickey and Feldman waiver petitions, this Court determined, the D. C. court had acted judicially. Id., at 479-482. As to that adjudication, Feldman held, this Court alone among federal courts had review authority. Hence, "to the extent that Hickey and Feldman sought review in the District Court of the District of Columbia Court of Appeals' denial of their petitions for waiver, the District Court lacked subject-matter jurisdiction over their complaints." Id., at 482. But that determination did not dispose of the entire case, for in promulgating *286 the bar admission rule, this Court said, the D. C. court had acted legislatively, not judicially. Id., at 485-486. "Challenges to the constitutionality of state bar rules," the Court elaborated, "do not necessarily require a United States district court to review a final state-court judgment in a judicial proceeding." Id., at 486. Thus, the Court reasoned, 28 U.S. C. § 1257 did not bar District Court proceedings addressed to the validity of the accreditation Rule itself. Feldman, 460 U. S., at 486. The Rule could be contested in federal court, this Court held, so long as plaintiffs did not seek review of the Rule's application in a particular case. Ibid. The Court endeavored to separate elements of the Hickey and Feldman complaints that failed the jurisdictional threshold from those that survived jurisdictional inspection. Plaintiffs had urged that the District of Columbia Court of Appeals acted arbitrarily in denying the waiver petitions of Hickey and Feldman, given that court's "former policy of granting waivers to graduates of unaccredited law schools." Ibid. That charge, the Court held, could not be pursued, for it was "inextricably intertwined with the District of Columbia Court of Appeals' decisions, in judicial proceedings, to deny [plaintiffs'] petitions." Id., at 486-487.[1] On the other hand, the Court said, plaintiffs could maintain "claims that the [bar admission] rule is unconstitutional because it creates an irrebuttable presumption that only graduates of accredited law schools are fit to practice law, discriminates against those who have obtained equivalent legal training by other means, and impermissibly delegates the District of Columbia Court of Appeals' power to regulate the *287 bar to the American Bar Association," for those claims "do not require review of a judicial decision in a particular case." Id., at 487. The Court left open the question whether the doctrine of res judicata foreclosed litigation of the elements of the complaints spared from dismissal for want of subject-matter jurisdiction. Id., at 487-488. Since Feldman, this Court has never applied Rooker-Feldman to dismiss an action for want of jurisdiction. The few decisions that have mentioned Rooker and Feldman have done so only in passing or to explain why those cases did not dictate dismissal. See Verizon Md. Inc. v. Public Serv. Comm'n of Md., 535 U.S. 635, 644, n. 3 (2002) (Rooker-Feldman does not apply to a suit seeking review of state agency action); Johnson v. De Grandy, 512 U.S. 997, 1005-1006 (1994) (Rooker-Feldman bars a losing party in state court "from seeking what in substance would be appellate review of the state judgment in a United States district court, based on the losing party's claim that the state judgment itself violates the loser's federal rights," but the doctrine has no application to a federal suit brought by a non-party to the state suit.); Howlett v. Rose, 496 U.S. 356, 369-370, n. 16 (1990) (citing Rooker and Feldman for "the rule that a federal district court cannot entertain an original action alleging that a state court violated the Constitution by giving effect to an unconstitutional state statute"); ASARCO Inc. v. Kadish, 490 U.S. 605, 622-623 (1989) (If, instead of seeking review of an adverse state supreme court decision in the Supreme Court, petitioners sued in federal district court, the federal action would be an attempt to obtain direct review of the state supreme court decision and would "represent a partial inroad on Rooker-Feldman's construction of 28 U.S. C. § 1257.");[2]Pennzoil Co. v. Texaco Inc., *288 481 U.S. 1, 6-10 (1987) (abstaining under Younger v. Harris, 401 U.S. 37 (1971), rather than dismissing under Rooker-Feldman, in a suit that challenged Texas procedures for enforcing judgments); 481 U.S., at 18 (SCALIA, J., concurring) (The "so-called Rooker-Feldman doctrine" does not deprive the Court of jurisdiction to decide Texaco's challenge to the Texas procedures); id., at 21 (Brennan, J., concurring in judgment) (Rooker and Feldman do not apply; Texaco filed its federal action to protect its "right to a meaningful opportunity for appellate review, not to challenge the merits of the Texas suit."). But cf. 481 U.S., at 25-26 (Marshall, J., concurring in judgment) (Rooker-Feldman would apply because Texaco's claims necessarily called for review of the merits of its state appeal). See also Martin v. Wilks, 490 U.S. 755, 783-784, n. 21 (1989) (STEVENS, J., dissenting) (it would be anomalous to allow courts to sit in review of judgments entered by courts of equal, or greater, authority (citing Rooker and Feldman)).[3] *289 II In 1980, two subsidiaries of petitioner Exxon Mobil Corporation (then the separate companies Exxon Corp. and Mobil Corp.) formed joint ventures with respondent Saudi Basic Industries Corp. (SABIC) to produce polyethylene in Saudi Arabia. 194 F. Supp. 2d 378, 384 (NJ 2002). Two decades later, the parties began to dispute royalties that SABIC had charged the joint ventures for sublicenses to a polyethylene manufacturing method. 364 F.3d 102, 103 (CA3 2004). SABIC preemptively sued the two ExxonMobil subsidiaries in Delaware Superior Court in July 2000 seeking a declaratory judgment that the royalty charges were proper under the joint venture agreements. 194 F. Supp. 2d, at 385-386. About two weeks later, ExxonMobil and its subsidiaries countersued SABIC in the United States District Court for the District of New Jersey, alleging that SABIC overcharged the joint ventures for the sublicenses. Id., at 385; App. 3. ExxonMobil invoked subject-matter jurisdiction in the New Jersey action under 28 U.S. C. § 1330, which authorizes district courts to adjudicate actions against foreign states. 194 F. Supp. 2d, at 401.[4] In January 2002, the ExxonMobil subsidiaries answered SABIC's state-court complaint, asserting as counterclaims the same claims ExxonMobil had made in the federal suit in New Jersey. 364 F.3d, at 103. The state suit went to trial in March 2003, and the jury returned a verdict of over $400 million in favor of the ExxonMobil subsidiaries. Ibid.; Saudi Basic Industries Corp. v. Mobil Yanbu Petrochemical Co., 866 A.2d 1, 11 (Del. 2005). SABIC appealed the judgment entered on the verdict to the Delaware Supreme Court. Before the state-court trial, SABIC moved to dismiss the federal suit, alleging, inter alia, immunity under the Foreign *290 Sovereign Immunities Act of 1976, 28 U.S. C. § 1602 et seq. (2000 ed. and Supp. II). The Federal District Court denied SABIC's motion to dismiss. 194 F. Supp. 2d, at 401-407, 416-417. SABIC took an interlocutory appeal, and the Court of Appeals heard argument in December 2003, over eight months after the state-court jury verdict. 364 F.3d, at 103-104.[5] The Court of Appeals, on its own motion, raised the question whether "subject matter jurisdiction over this case fails under the Rooker-Feldman doctrine because ExxonMobil's claims have already been litigated in state court." Id., at 104.[6] The court did not question the District Court's possession of subject-matter jurisdiction at the outset of the suit, but held that federal jurisdiction terminated when the Delaware Superior Court entered judgment on the jury verdict. Id., at 104-105. The court rejected ExxonMobil's argument that Rooker-Feldman could not apply because ExxonMobil filed its federal complaint well before the state-court judgment. The only relevant consideration, the court stated, "is whether the state judgment precedes a federal judgment on the same claims." 364 F.3d, at 105. If Rooker-Feldman did not apply to federal actions filed prior to a state-court judgment, the Court of Appeals worried, "we would be encouraging parties to maintain federal actions as `insurance policies' while their state court claims were pending." 364 F.3d, at 105. Once ExxonMobil's claims had been litigated to a judgment in state court, the Court of Appeals held, Rooker-Feldman "preclude[d] [the] federal district court *291 from proceeding." 364 F.3d, at 104 (internal quotation marks omitted). ExxonMobil, at that point prevailing in Delaware, was not seeking to overturn the state-court judgment. Nevertheless, the Court of Appeals hypothesized that, if SABIC won on appeal in Delaware, ExxonMobil would be endeavoring in the federal action to "invalidate" the state-court judgment, "the very situation," the court concluded, "contemplated by Rooker-Feldman's `inextricably intertwined' bar." Id., at 106. We granted certiorari, 543 U.S. 924 (2004), to resolve conflict among the Courts of Appeals over the scope of the Rooker-Feldman doctrine. We now reverse the judgment of the Court of Appeals for the Third Circuit.[7] III Rooker and Feldman exhibit the limited circumstances in which this Court's appellate jurisdiction over state-court judgments, 28 U.S. C. § 1257, precludes a United States district court from exercising subject-matter jurisdiction in an action it would otherwise be empowered to adjudicate under a congressional grant of authority, e. g., § 1330 (suits against foreign states), § 1331 (federal question), and § 1332 (diversity). In both cases, the losing party in state court filed suit in federal court after the state proceedings ended, complaining of an injury caused by the state-court judgment and seeking review and rejection of that judgment. Plaintiffs in both cases, alleging federal-question jurisdiction, called upon *292 the District Court to overturn an injurious state-court judgment. Because § 1257, as long interpreted, vests authority to review a state court's judgment solely in this Court, e. g., Feldman, 460 U. S., at 476; Atlantic Coast Line R. Co. v. Locomotive Engineers, 398 U.S. 281, 286 (1970); Rooker, 263 U. S., at 416, the District Courts in Rooker and Feldman lacked subject-matter jurisdiction. See Verizon Md. Inc., 535 U. S., at 644, n. 3 ("The Rooker-Feldman doctrine merely recognizes that 28 U.S. C. § 1331 is a grant of original jurisdiction, and does not authorize district courts to exercise appellate jurisdiction over state-court judgments, which Congress has reserved to this Court, see § 1257(a).").[8] When there is parallel state and federal litigation, Rooker-Feldman is not triggered simply by the entry of judgment in state court. This Court has repeatedly held that "the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction." McClellan v. Carland, 217 U.S. 268, 282 (1910); accord Doran v. Salem Inn, Inc., 422 U.S. 922, 928 (1975); Atlantic Coast Line R. Co., 398 U. S., at 295. Comity or abstention doctrines may, in various circumstances, permit or require the federal court to stay or dismiss the federal action in favor of the state-court litigation. See, e. g., Colorado River Water Conservation Dist. v. United States, 424 U.S. 800 (1976); Younger v. Harris, 401 U.S. 37 (1971); Burford v. Sun Oil Co., 319 U.S. 315 (1943); Railroad Comm'n of Tex. v. Pullman Co., 312 U.S. 496 (1941). But neither Rooker nor Feldman supports the notion that properly invoked concurrent jurisdiction vanishes if a state court reaches judgment on the same or related question while the case remains sub judice in a federal court. *293 Disposition of the federal action, once the state-court adjudication is complete, would be governed by preclusion law. The Full Faith and Credit Act, 28 U.S. C. § 1738, originally enacted in 1790, ch. 11, 1 Stat. 122, requires the federal court to "give the same preclusive effect to a state-court judgment as another court of that State would give." Parsons Steel, Inc. v. First Alabama Bank, 474 U.S. 518, 523 (1986); accord Matsushita Elec. Industrial Co. v. Epstein, 516 U.S. 367, 373 (1996); Marrese v. American Academy of Orthopaedic Surgeons, 470 U.S. 373, 380-381 (1985). Preclusion, of course, is not a jurisdictional matter. See Fed. Rule Civ. Proc. 8(c) (listing res judicata as an affirmative defense). In parallel litigation, a federal court may be bound to recognize the claim- and issue-preclusive effects of a state-court judgment, but federal jurisdiction over an action does not terminate automatically on the entry of judgment in the state court. Nor does § 1257 stop a district court from exercising subject-matter jurisdiction simply because a party attempts to litigate in federal court a matter previously litigated in state court. If a federal plaintiff "present[s] some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party ..., then there is jurisdiction and state law determines whether the defendant prevails under principles of preclusion." GASH Assocs. v. Rosemont, 995 F.2d 726, 728 (CA7 1993); accord Noel v. Hall, 341 F.3d 1148, 1163-1164 (CA9 2003). This case surely is not the "paradigm situation in which Rooker-Feldman precludes a federal district court from proceeding." 364 F.3d, at 104 (quoting E. B. v. Verniero, 119 F.3d 1077, 1090-1091 (CA3 1997)). ExxonMobil plainly has not repaired to federal court to undo the Delaware judgment in its favor. Rather, it appears ExxonMobil filed suit in Federal District Court (only two weeks after SABIC filed in Delaware and well before any judgment in state court) to *294 protect itself in the event it lost in state court on grounds (such as the state statute of limitations) that might not preclude relief in the federal venue. Tr. of Oral Arg. 46; App. 35-36.[9]Rooker-Feldman did not prevent the District Court from exercising jurisdiction when ExxonMobil filed the federal action, and it did not emerge to vanquish jurisdiction after ExxonMobil prevailed in the Delaware courts. * * * For the reasons stated, the judgment of the Court of Appeals for the Third Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

This case concerns what has come to be known as the - doctrine, applied by this Court only twice, first in then, 60 years later, in District of Columbia Court of Variously interpreted in the lower courts, the doctrine has sometimes been construed to extend far beyond the contours of the and cases, overriding Congress' conferral of federal-court jurisdiction concurrent with jurisdiction exercised by state courts, and superseding the ordinary application of preclusion law pursuant to 28 U.S. C. 1738. See, e. g., was a suit commenced in Federal District Court to have a judgment of a state court, adverse to the federal court plaintiffs, "declared null and void." In parties unsuccessful in the District of Columbia Court of Appeals (the District's highest court) commenced a federal-court action against the very court that had rejected their applications. Holding the federal suits impermissible, we emphasized that appellate jurisdiction to reverse or modify a state-court judgment is lodged, initially by 25 of the Judiciary Act of 1789, and now by 28 U.S. C. 1257, exclusively in this Court. Federal district courts, we noted, are empowered to exercise original, not appellate, jurisdiction. Plaintiffs in and had litigated and lost in state court. Their federal complaints, we observed, essentially invited federal courts of first instance to review and reverse unfavorable state-court judgments. We *284 declared such suits out of bounds, i. e., properly dismissed for want of subject-matter jurisdiction. The - doctrine, we hold today, is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments. - does not otherwise override or supplant preclusion doctrine or augment the circumscribed doctrines that allow federal courts to stay or dismiss proceedings in deference to state-court actions. In the case before us, the Court of Appeals for the Third Circuit misperceived the narrow ground occupied by -, and consequently erred in ordering the federal action dismissed for lack of subject-matter jurisdiction. We therefore reverse the Third Circuit's judgment. I In the parties defeated in state court turned to a Federal District Court for relief. Alleging that the adverse state-court judgment was rendered in contravention of the Constitution, they asked the federal court to declare it "null and void." This Court noted preliminarily that the state court had acted within its jurisdiction. If the state-court decision was wrong, the Court explained, "that did not make the judgment void, but merely left it open to reversal or modification in an appropriate and timely appellate proceeding." Federal district courts, the Court recognized, lacked the requisite appellate authority, for their jurisdiction was "strictly original." Among federal courts, the Court clarified, Congress had empowered only this Court to exercise appellate authority "to reverse or modify" a state-court judgment. *285 Accordingly, the Court affirmed a decree dismissing the suit for lack of jurisdiction. 417. Sixty years later, the Court decided District of Columbia Court of The two plaintiffs in that case, Hickey and neither of whom had graduated from an accredited law school, petitioned the District of Columbia Court of Appeals to waive a court Rule that required D. C. bar applicants to have graduated from a law school approved by the American Bar Association. After the D. C. court denied their waiver requests, Hickey and filed suits in the United States District Court for the District of Columbia. The District Court and the Court of Appeals for the District of Columbia Circuit disagreed on the question whether the federal suit could be maintained, and we granted certiorari. Recalling this Court's opinion in observed first that the District Court lacked authority to review a final judicial determination of the D. C. high court. "Review of such determinations," the opinion reiterated, "can be obtained only in this Court." The "crucial question," the Court next stated, was whether the proceedings in the D. C. court were "judicial in nature." Addressing that question, the Court concluded that the D. C. court had acted both judicially and legislatively. In applying the accreditation Rule to the Hickey and waiver petitions, this Court determined, the D. C. court had acted judicially. As to that adjudication, held, this Court alone among federal courts had review authority. Hence, "to the extent that Hickey and sought review in the District Court of the District of Columbia Court of Appeals' denial of their petitions for waiver, the District Court lacked subject-matter jurisdiction over their complaints." But that determination did not dispose of the entire case, for in promulgating * the bar admission rule, this Court said, the D. C. court had acted legislatively, not judicially. "Challenges to the constitutionality of state bar rules," the Court elaborated, "do not necessarily require a United States district court to review a final state-court judgment in a judicial proceeding." Thus, the Court reasoned, 28 U.S. C. 1257 did not bar District Court proceedings addressed to the validity of the accreditation Rule itself. 460 U. S., The Rule could be contested in federal court, this Court held, so long as plaintiffs did not seek review of the Rule's application in a particular case. The Court endeavored to separate elements of the Hickey and complaints that failed the jurisdictional threshold from those that survived jurisdictional inspection. Plaintiffs had urged that the District of Columbia Court of Appeals acted arbitrarily in denying the waiver petitions of Hickey and given that court's "former policy of granting waivers to graduates of unaccredited law schools." That charge, the Court held, could not be pursued, for it was "inextricably intertwined with the District of Columbia Court of Appeals' decisions, in judicial proceedings, to deny [plaintiffs'] petitions." -487.[1] On the other hand, the Court said, plaintiffs could maintain "claims that the [bar admission] rule is unconstitutional because it creates an irrebuttable presumption that only graduates of accredited law schools are fit to practice law, discriminates against those who have obtained equivalent legal training by other means, and impermissibly delegates the District of Columbia Court of Appeals' power to regulate the *287 bar to the American Bar Association," for those claims "do not require review of a judicial decision in a particular case." The Court left open the question whether the doctrine of res judicata foreclosed litigation of the elements of the complaints spared from dismissal for want of subject-matter jurisdiction. -488. Since this Court has never applied - to dismiss an action for want of jurisdiction. The few decisions that have mentioned and have done so only in passing or to explain why those cases did not dictate dismissal. See Verizon Md. (- does not apply to a suit seeking review of state agency action); (- bars a losing party in state court "from seeking what in substance would be appellate review of the state judgment in a United States district court, based on the losing party's claim that the state judgment itself violates the loser's federal rights," but the doctrine has no application to a federal suit brought by a non-party to the state suit.); (citing and for "the rule that a federal district court cannot entertain an original action alleging that a state court violated the Constitution by giving effect to an unconstitutional state statute"); ASARCO (If, instead of seeking review of an adverse state supreme court decision in the Supreme Court, petitioners sued in federal district court, the federal action would be an attempt to obtain direct review of the state supreme court decision and would "represent a partial inroad on -'s construction of 28 U.S. C. 1257.");[2]Pennzoil rather than dismissing under -, in a suit that challenged Texas procedures for enforcing judgments); (The "so-called - doctrine" does not deprive the Court of jurisdiction to decide Texaco's challenge to the Texas procedures); ( and do not apply; Texaco filed its federal action to protect its "right to a meaningful opportunity for appellate review, not to challenge the merits of the Texas suit."). But -26 (- would apply because Texaco's claims necessarily called for review of the merits of its state appeal). See also (it would be anomalous to allow courts to sit in review of judgments entered by courts of equal, or greater, authority (citing and )).[3] *289 II In 1980, two subsidiaries of petitioner Exxon Mobil Corporation (then the separate companies Exxon Corp. and Mobil Corp.) formed joint ventures with respondent Saudi Basic Industries Corp. (SABIC) to produce polyethylene in Saudi Arabia. Two decades later, the parties began to dispute royalties that SABIC had charged the joint ventures for sublicenses to a polyethylene manufacturing method. SABIC preemptively sued the two ExxonMobil subsidiaries in Delaware Superior Court in July 2000 seeking a declaratory judgment that the royalty charges were proper under the joint venture -386. About two weeks later, ExxonMobil and its subsidiaries countersued SABIC in the United States District Court for the District of New Jersey, alleging that SABIC overcharged the joint ventures for the sublicenses. ; App. 3. ExxonMobil invoked subject-matter jurisdiction in the New Jersey action under 28 U.S. C. 1330, which authorizes district courts to adjudicate actions against foreign[4] In January the ExxonMobil subsidiaries answered SABIC's state-court complaint, asserting as counterclaims the same claims ExxonMobil had made in the federal suit in New 364 F.3d, at The state suit went to trial in March and the jury returned a verdict of over $400 million in favor of the ExxonMobil subsidiaries. ; Saudi Basic Industries SABIC appealed the judgment entered on the verdict to the Delaware Supreme Court. Before the state-court trial, SABIC moved to dismiss the federal suit, alleging, inter alia, immunity under the Foreign *290 Sovereign Immunities Act of 1976, 28 U.S. C. 1602 et seq. (2000 ed. and Supp. II). The Federal District Court denied SABIC's motion to -407, 416-417. SABIC took an interlocutory appeal, and the Court of Appeals heard argument in December over eight months after the state-court jury 364 F.3d, at -104.[5] The Court of Appeals, on its own motion, raised the question whether "subject matter jurisdiction over this case fails under the - doctrine because ExxonMobil's claims have already been litigated in state court."[6] The court did not question the District Court's possession of subject-matter jurisdiction at the outset of the suit, but held that federal jurisdiction terminated when the Delaware Superior Court entered judgment on the jury -105. The court rejected ExxonMobil's argument that - could not apply because ExxonMobil filed its federal complaint well before the state-court judgment. The only relevant consideration, the court stated, "is whether the state judgment precedes a federal judgment on the same claims." If - did not apply to federal actions filed prior to a state-court judgment, the Court of Appeals worried, "we would be encouraging parties to maintain federal actions as `insurance policies' while their state court claims were pending." Once ExxonMobil's claims had been litigated to a judgment in state court, the Court of Appeals held, - "preclude[d] [the] federal district court *291 from proceeding." 364 F.3d, ExxonMobil, at that point prevailing in Delaware, was not seeking to overturn the state-court judgment. Nevertheless, the Court of Appeals hypothesized that, if SABIC won on appeal in Delaware, ExxonMobil would be endeavoring in the federal action to "invalidate" the state-court judgment, "the very situation," the court concluded, "contemplated by -'s `inextricably intertwined' bar." We granted certiorari, to resolve conflict among the Courts of Appeals over the scope of the - doctrine. We now reverse the judgment of the Court of Appeals for the Third Circuit.[7] III and exhibit the limited circumstances in which this Court's appellate jurisdiction over state-court judgments, 28 U.S. C. 1257, precludes a United States district court from exercising subject-matter jurisdiction in an action it would otherwise be empowered to adjudicate under a congressional grant of authority, e. g., 1330 (suits against foreign states), 1331 (federal question), and 1332 (diversity). In both cases, the losing party in state court filed suit in federal court after the state proceedings ended, complaining of an injury caused by the state-court judgment and seeking review and rejection of that judgment. Plaintiffs in both cases, alleging federal-question jurisdiction, called upon *292 the District Court to overturn an injurious state-court judgment. Because 1257, as long interpreted, vests authority to review a state court's judgment solely in this Court, e. g., ; Atlantic Coast Line R. ; 263 U. S., the District Courts in and lacked subject-matter jurisdiction. See Verizon Md. 535 U. S., at ("The - doctrine merely recognizes that 28 U.S. C. 1331 is a grant of original jurisdiction, and does not authorize district courts to exercise appellate jurisdiction over state-court judgments, which Congress has reserved to this Court, see 1257(a).").[8] When there is parallel state and federal litigation, - is not triggered simply by the entry of judgment in state court. This Court has repeatedly held that "the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction." ; accord Doran v. Salem Inn, ; Atlantic Coast Line R. Comity or abstention doctrines may, in various circumstances, permit or require the federal court to stay or dismiss the federal action in favor of the state-court litigation. See, e. g., Colorado River Water Conservation ; ; Burford v. Sun Oil ; Railroad Comm'n of Tex. v. Pullman But neither nor supports the notion that properly invoked concurrent jurisdiction vanishes if a state court reaches judgment on the same or related question while the case remains sub judice in a federal court. *293 Disposition of the federal action, once the state-court adjudication is complete, would be governed by preclusion law. The Full Faith and Credit Act, 28 U.S. C. 1738, originally enacted in 1790, ch. requires the federal court to "give the same preclusive effect to a state-court judgment as another court of that State would give." Parsons Steel, v. First Alabama Bank, ; accord Matsushita Elec. Industrial v. Epstein, ; 470 U.S. Preclusion, of course, is not a jurisdictional matter. See Fed. Rule Civ. Proc. 8(c) (listing res judicata as an affirmative defense). In parallel litigation, a federal court may be bound to recognize the claim- and issue-preclusive effects of a state-court judgment, but federal jurisdiction over an action does not terminate automatically on the entry of judgment in the state court. Nor does 1257 stop a district court from exercising subject-matter jurisdiction simply because a party attempts to litigate in federal court a matter previously litigated in state court. If a federal plaintiff "present[s] some independent claim, albeit one that denies a legal conclusion that a state court has reached in a case to which he was a party, then there is jurisdiction and state law determines whether the defendant prevails under principles of preclusion." GASH ; accord 341 F.3d 48, 63-64 This case surely is not the "paradigm situation in which - precludes a federal district court from proceeding." 364 F.3d, ). ExxonMobil plainly has not repaired to federal court to undo the Delaware judgment in its favor. Rather, it appears ExxonMobil filed suit in Federal District Court (only two weeks after SABIC filed in Delaware and well before any judgment in state court) to *294 protect itself in the event it lost in state court on grounds (such as the state statute of limitations) that might not preclude relief in the federal venue. Tr. of Oral Arg. 46; App. 35-36.[9]- did not prevent the District Court from exercising jurisdiction when ExxonMobil filed the federal action, and it did not emerge to vanquish jurisdiction after ExxonMobil prevailed in the Delaware courts. * * * For the reasons stated, the judgment of the Court of Appeals for the Third Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered.

Justice Kagan

majority

National Meat Assn. v. Harris

2012-01-23

https://www.courtlistener.com/opinion/621293/national-meat-assn-v-harris/

https://www.courtlistener.com/api/rest/v3/clusters/621293/

2011-019

The Federal Meat Inspection Act (FMIA or Act), 21 U.S. C. §601 et seq., regulates the inspection, handling, and slaughter of livestock for human consumption. We consider here whether the FMIA expressly preempts a California law dictating what slaughterhouses must do with pigs that cannot walk, known in the trade as nonam- bulatory pigs. We hold that the FMIA forecloses the chal- lenged applications of the state statute. I A The FMIA regulates a broad range of activities at slaughterhouses to ensure both the safety of meat and the humane handling of animals.1 First enacted in 1906, after —————— 1 The FMIA applies to all slaughterhouses producing meat for in- terstate and foreign commerce. See 21 U.S. C. §§601(h), 603(a). The FMIA also regulates slaughterhouses serving an exclusively intrastate market in any State that does not administer an inspection system with “requirements at least equal to those” of the Act. §661(c)(1). Because California has chosen not to adopt such an inspection program, 2 NATIONAL MEAT ASSN. v. HARRIS Opinion of the Court Upton Sinclair’s muckraking novel The Jungle sparked an uproar over conditions in the meatpacking industry, the Act establishes “an elaborate system of inspecti[ng]” live animals and carcasses in order “to prevent the shipment of impure, unwholesome, and unfit meat and meat-food products.” Pittsburgh Melting Co. v. Totten, 248 U.S. 1, 4–5 (1918). And since amended in 1978, see 92 Stat. 1069, the FMIA requires all slaughterhouses to comply with the standards for humane handling and slaughter of animals set out in the Humane Methods of Slaughter Act of 1958, (HMSA), 72 Stat. 862, 7 U.S. C. §1901 et seq., which originally applied only to slaughterhouses selling meat to the Federal Government. The Department of Agriculture’s Food Safety and In- spection Service (FSIS) has responsibility for administer- ing the FMIA to promote its dual goals of safe meat and humane slaughter. Over the years, the FSIS has issued extensive regulations to govern the inspection of animals and meat, as well as other aspects of slaughterhouses’ operations and facilities. See 9 CFR §300.1 et seq. (2011). The FSIS employs about 9,000 inspectors, veterinarians, and investigators to implement its inspection regime and enforce its humane-handling requirements. See Hearings on 2012 Appropriations before the Subcommittee on Agri- culture of the House Committee on Appropriations, 112th Cong., 1st Sess., pt. 1B, p. 921 (2011). In fiscal year 2010, those personnel examined about 147 million head of live- stock and carried out more than 126,000 “humane han- dling verification procedures.” Id., at 942–943. The FSIS’s inspection procedure begins with an “ante- mortem” examination of each animal brought to a slaugh- terhouse. See 9 CFR §309.1. If the inspector finds no —————— the FMIA governs all slaughterhouses in the State (except for any limited to “custom slaughtering for personal, household, guest, and employee uses,” §623(a)). Cite as: 565 U. S. ____ (2012) 3 Opinion of the Court evidence of disease or injury, he approves the animal for slaughter. If, at the other end of the spectrum, the inspec- tor sees that an animal is dead or dying, comatose, suffer- ing from a high fever, or afflicted with a serious disease or condition, he designates the animal as “U. S. Condemned.” See §309.3; §311.1 et seq. (listing diseases requiring con- demnation). A condemned animal (if not already dead) must be killed apart from the slaughtering facilities where food is produced, and no part of its carcass may be sold for human consumption. See §309.13(a); 21 U.S. C. §610(c). The inspector also has an intermediate option: If he determines that an animal has a less severe condition—or merely suspects the animal of having a disease meriting condemnation—he classifies the animal as “U. S. Suspect.” See 9 CFR §309.2. That category includes all nonambula- tory animals not found to require condemnation.2 See §309.2(b). Suspect livestock must be “set apart,” specially monitored, and (if not reclassified because of a change in condition) “slaughtered separately from other livestock.” §309.2(n). Following slaughter, an inspector decides at a “post-mortem” examination which parts, if any, of the suspect animal’s carcass may be processed into food for humans. See 9 CFR pts. 310, 311. The regulations implementing the FMIA additionally prescribe methods for handling animals humanely at all stages of the slaughtering process. Those rules apply from the moment a truck carrying livestock “enters, or is in line to enter,” a slaughterhouse’s premises. Humane Handling and Slaughter of Livestock, FSIS Directive 6900.2, ch. II(I) (rev. Aug. 15, 2011). And they include specific provisions for the humane treatment of animals that cannot walk. —————— 2 The FSIS’s regulations define “non-ambulatory disabled livestock” as “livestock that cannot rise from a recumbent position or that cannot walk, including, but not limited to, those with broken appendages, severed tendons or ligaments, nerve paralysis, fractured vertebral column, or metabolic conditions.” §309.2(b). 4 NATIONAL MEAT ASSN. v. HARRIS Opinion of the Court See 9 CFR §313.2(d). Under the regulations, slaughter- house employees may not drag conscious, nonambulatory animals, see §313.2(d)(2), and may move them only with “equipment suitable for such purposes,” §313.2(d)(3). Similarly, employees must place nonambulatory animals, as well as other sick and disabled livestock, in covered pens sufficient to protect the animals from “adverse cli- matic conditions.” See §313.2(d)(1); §313.1(c). The FMIA contains an express preemption provision, at issue here, addressing state laws on these and similar matters. That provision’s first sentence reads: “Requirements within the scope of this [Act] with re- spect to premises, facilities and operations of any es- tablishment at which inspection is provided under . . . this [Act] which are in addition to, or different than those made under this [Act] may not be imposed by any State.” 21 U.S. C. §678.3 B In 2008, the Humane Society of the United States released an undercover video showing workers at a slaugh- terhouse in California dragging, kicking, and electro- shocking sick and disabled cows in an effort to move them. The video led the Federal Government to institute the largest beef recall in U. S. history in order to prevent consumption of meat from diseased animals. Of greater relevance here, the video also prompted the California legislature to strengthen a pre-existing statute governing the treatment of nonambulatory animals and to apply that statute to slaughterhouses regulated under the FMIA. See National Meat Assn. v. Brown, 599 F.3d 1093, 1096 —————— 3 The preemption provision also includes a saving clause, which states that the Act “shall not preclude any State . . . from making require- ment[s] or taking other action, consistent with this [Act], with respect to any other matters regulated under this [Act].” 21 U.S. C. §678; see n. 10, infra. Cite as: 565 U. S. ____ (2012) 5 Opinion of the Court (CA9 2010). As amended, the California law—§599f of the state penal code—provides in relevant part: “(a) No slaughterhouse, stockyard, auction, market agency, or dealer shall buy, sell, or receive a nonam- bulatory animal. “(b) No slaughterhouse shall process, butcher, or sell meat or products of nonambulatory animals for human consumption. “(c) No slaughterhouse shall hold a nonambulatory animal without taking immediate action to humanely euthanize the animal.” Cal. Penal Code Ann. §599f (West 2010). The maximum penalty for violating any of these prohibi- tions is one year in jail and a $20,000 fine. See §599f(h). Petitioner National Meat Association (NMA) is a trade association representing meatpackers and processors, in- cluding operators of swine slaughterhouses. It sued to enjoin the enforcement of §599f against those slaughter- houses, principally on the ground that the FMIA preempts application of the state law.4 The District Court granted the NMA’s motion for a preliminary injunction, reasoning that §599f is expressly preempted because it requires swine “to be handled in a manner other than that pre- scribed by the FMIA” and its regulations. App. to Pet. for Cert. 36a. But the United States Court of Appeals for the Ninth Circuit vacated the injunction. According to that court, the FMIA does not expressly preempt §599f because the state law regulates only “the kind of animal that may be slaughtered,” and not the inspection or slaughtering process itself. 599 F.3d, at 1098. We granted certiorari, 564 U. S. __ (2011), and now —————— 4 The Humane Society intervened to defend §599f in the District Court. See Motion to Intervene in No. 08–1963 (ED Cal.), Record, Doc. 46. The organization continues as a respondent in this Court. 6 NATIONAL MEAT ASSN. v. HARRIS Opinion of the Court reverse. II The FMIA’s preemption clause sweeps widely—and in so doing, blocks the applications of §599f challenged here. The clause prevents a State from imposing any additional or different—even if non-conflicting—requirements that fall within the scope of the Act and concern a slaughter- house’s facilities or operations. And at every turn §599f imposes additional or different requirements on swine slaughterhouses: It compels them to deal with nonambula- tory pigs on their premises in ways that the federal Act and regulations do not. In essence, California’s statute substitutes a new regulatory scheme for the one the FSIS uses. Where under federal law a slaughterhouse may take one course of action in handling a nonambulatory pig, under state law the slaughterhouse must take another. Consider first what the two statutes tell a slaughter- house to do when (as not infrequently occurs) a pig be- comes injured and thus nonambulatory sometime after delivery to the slaughterhouse.5 Section 599f(c) prohibits the slaughterhouse from “hold[ing]” such an animal “with- out taking immediate action to humanely euthanize” it. And §599f(b) provides that no part of the animal’s carcass may be “process[ed]” or “butcher[ed]” to make food. By contrast, under the FMIA and its regulations, a slaugh- terhouse may hold (without euthanizing) any nonambula- tory pig that has not been condemned. See supra, at 3. And the slaughterhouse may process or butcher such an —————— 5 The percentage of pigs becoming nonambulatory after delivery var- ies by slaughterhouse from 0.1 percent to over 1 percent. See McGlone, Fatigued Pigs: The Final Link, Pork Magazine 14 (Mar. 2006). About 100 million pigs are slaughtered each year in the United States, see Dept. of Agriculture, National Agricultural Statistics Service, Livestock Slaughter 13 (Jan. 2011), so those percentages work out to between 100,000 and 1,000,000 pigs. Cite as: 565 U. S. ____ (2012) 7 Opinion of the Court animal’s meat for human consumption, subject to an FSIS official’s approval at a post-mortem inspection. See ibid. The State’s proscriptions thus exceed the FMIA’s. To be sure, nothing in the federal Act requires what the state law forbids (or forbids what the state law requires); Cali- fornia is right to note that “[t]he FMIA does not mandate that ‘U. S. Suspect’ [nonambulatory] animals . . . be placed into the human food production process.” Brief for State Respondents 31. But that is irrelevant, because the FMIA’s preemption clause covers not just conflicting, but also different or additional state requirements. It there- fore precludes California’s effort in §§599f(b) and (c) to im- pose new rules, beyond any the FSIS has chosen to adopt, on what a slaughterhouse must do with a pig that be- comes nonambulatory during the production process. Similarly, consider how the state and federal laws ad- dress what a slaughterhouse should do when a pig is non- ambulatory at the time of delivery, usually because of harsh transportation conditions.6 Section 599f(a) of the California law bars a slaughterhouse from “receiv[ing]” or “buy[ing]” such a pig, thus obligating the slaughterhouse to refuse delivery of the animal.7 But that directive, too, deviates from any imposed by federal law. A regulation issued under the FMIA specifically authorizes slaughter- houses to buy disabled or diseased animals (including nonambulatory swine), by exempting them from a general prohibition on such purchases. See 9 CFR §325.20(c). —————— 6 According to one estimate, almost half of one percent of the pigs slaughtered annually in the United States become nonambulatory during the trip from farm to slaughterhouse. See National Pork Board, Transport Quality Assurance Handbook 25 (Version 4, 2010). About half that many die during transport. See ibid. 7 Section 599f(a) also bans “sell[ing]” nonambulatory animals. But because slaughterhouses (unlike other entities referenced in the provi- sion) do not typically sell live animals, that prohibition is not at issue in this case. The statute’s distinct ban on selling meat from nonambula- tory animals that have been slaughtered is discussed infra, at 9–10. 8 NATIONAL MEAT ASSN. v. HARRIS Opinion of the Court And other regulations contemplate that slaughterhouses will in fact take, rather than refuse, receipt of nonambula- tory swine. Recall that the FMIA’s regulations provide for the inspection of all pigs at delivery, see supra, at 2—in the case of nonambulatory pigs, often right on the truck, see Humane Handling and Slaughter of Livestock, FSIS Directive 6900.2, ch. II(I). They further instruct slaugh- terhouses to kill and dispose of any nonambulatory pigs labeled “condemned,” and to slaughter separately those marked “suspect.” See supra, at 3. In short, federal law establishes rules for handling and slaughtering nonam- bulatory pigs brought to a slaughterhouse, rather than ordering them returned to sender. So §599f(a) and the FMIA require different things of a slaughterhouse con- fronted with a delivery truck containing nonambula- tory swine. The former says “do not receive or buy them”; the latter does not. The Humane Society counters that at least §599f(a)’s ban on buying nonambulatory animals escapes preemp- tion because that provision applies no matter when or where a purchase takes place. The argument proceeds in three steps: (1) §599f(a)’s ban covers purchases of non- ambulatory pigs made prior to delivery, away from the slaughterhouse itself (say, at a farm or auction); (2) the State may regulate such offsite purchases because they do not involve a slaughterhouse’s “premises, facilities and operations,” which is a condition of preemption under the FMIA; and (3) no different result should obtain just be- cause a slaughterhouse structures its swine purchases to occur at delivery, on its own property. See Brief for Non- State Respondents 43–45. But this argument fails on two grounds. First, its pre- liminary steps have no foundation in the record. Until a stray comment at oral argument, see Tr. of Oral Arg. 50, neither the State nor the Humane Society had disputed the NMA’s assertion that slaughterhouses buy pigs at Cite as: 565 U. S. ____ (2012) 9 Opinion of the Court delivery (or still later, upon successful ante-mortem in- spection). See Brief for Petitioner 46, n. 18; Brief for Non- State Respondents 44; Brief for State Respondents 16, n. 5. Nor had the parties presented evidence that a signif- icant number of pigs become nonambulatory before ship- ment, when any offsite purchases would occur. The record therefore does not disclose whether §599f(a)’s ban on purchase ever applies beyond the slaughterhouse gate, much less how an application of that kind would affect a slaughterhouse’s operations. And because that is so, we have no basis for deciding whether the FMIA would preempt it. Second, even assuming that a State could regulate offsite purchases, the concluding step of the Humane Society’s argument would not follow. The FMIA’s preemption clause expressly focuses on “premises, facili- ties and operations”—at bottom, the slaughtering and processing of animals at a given location. So the distinc- tion between a slaughterhouse’s site-based activities and its more far-flung commercial dealings is not, as the Hu- mane Society contends, an anomaly that courts should strain to avoid. It is instead a fundamental feature of the FMIA’s preemption clause. For that reason, the Humane Society’s stronger argu- ment concerns California’s effort to regulate the last stage of a slaughterhouse’s business—the ban in §599f(b) on “sell[ing] meat or products of nonambulatory animals for human consumption.” The Government acknowledges that the FMIA’s preemption clause does not usually fore- close “state regulation of the commercial sales activities of slaughterhouses.” Brief for United States as Amicus Curiae 17. And the Humane Society asserts, in line with that general rule, that §599f(b)’s ban on sales does not regulate a slaughterhouse’s “operations” because it kicks in only after they have ended: Once meat from a slaugh- tered pig has passed a post-mortem inspection, the Act “is not concerned with whether or how it is ever actually 10 NATIONAL MEAT ASSN. v. HARRIS Opinion of the Court sold.” Brief for Non-State Respondents 45. At most, the Humane Society claims, §599f(b)’s ban on sales offers an “incentiv[e]” to a slaughterhouse to take nonambulatory pigs out of the meat production process. Id., at 46. And California may so “motivate[]” an operational choice with- out running afoul of the FMIA’s preemption provision. Ibid. (quoting Bates v. Dow Agrosciences LLC, 544 U.S. 431, 443 (2005)). But this argument mistakes how the prohibition on sales operates within §599f as a whole. The sales ban is a criminal proscription calculated to help implement and enforce each of the section’s other regulations—its prohibi- tion of receipt and purchase, its bar on butchering and processing, and its mandate of immediate euthanasia. The idea—and the inevitable effect—of the provision is to make sure that slaughterhouses remove nonambulatory pigs from the production process (or keep them out of the process from the beginning) by criminalizing the sale of their meat. That, we think, is something more than an “incentive” or “motivat[or]”; the sales ban instead func- tions as a command to slaughterhouses to structure their operations in the exact way the remainder of §599f man- dates. And indeed, if the sales ban were to avoid the FMIA’s preemption clause, then any State could impose any regulation on slaughterhouses just by framing it as a ban on the sale of meat produced in whatever way the State disapproved. That would make a mockery of the FMIA’s preemption provision. Cf. Engine Mfrs. Assn. v. South Coast Air Quality Management Dist., 541 U.S. 246, 255 (2004) (stating that it “would make no sense” to allow state regulations to escape preemption because they ad- dressed the purchase, rather than manufacture, of a fed- erally regulated product). Like the rest of §599f, the sales ban regulates how slaughterhouses must deal with non- ambulatory pigs on their premises. The FMIA therefore preempts it for all the same reasons. Cite as: 565 U. S. ____ (2012) 11 Opinion of the Court III California’s and the Humane Society’s broadest argu- ment against preemption maintains that all of §599f ’s challenged provisions fall outside the “scope” of the FMIA because they exclude a class of animals from the slaugh- tering process. See 21 U.S. C. §678 (preempting certain requirements “within the scope of this [Act]”). According to this view, the Act (and the FSIS’s authority under it) extends only to “animals that are going to be turned into meat,” Tr. of Oral Arg. 28—or to use another phrase, animals that will “be slaughtered . . . for purposes of human food production,” Brief for State Respondents 19 (emphasis deleted). Section 599f avoids the scope of the Act, respondents claim, by altogether removing nonambu- latory pigs from the slaughtering process.8 The Ninth Circuit accepted this argument, analogizing §599f to state laws upheld in two other Circuits banning the slaughter of horses for human consumption. 599 F.3d, at 1098 (dis- cussing Cavel Int’l., Inc. v. Madigan, 500 F.3d 551 (CA7 2007), and Empacadora de Carnes de Fresnillo, S. A. de C.V. v. Curry, 476 F.3d 326 (CA5 2007)). According to the Court of Appeals, “states are free to decide which animals may be turned into meat.” 599 F.3d, at 1098, 1099. We think not. The FMIA’s scope includes not only “animals that are going to be turned into meat,” but ani- —————— 8 California’sbrief sometimes casts its argument in terms of the “op- erations” language of the FMIA’s preemption clause (although the State appeared to abandon this phrasing at oral argument). In this version of the claim, California contends that the “operations” of a slaughterhouse are only those “of federal concern,” and that excluding a class of ani- mals from the slaughtering process does not impinge on such opera- tions. Brief for State Respondents 20, n. 9; see also id., at 20–21. We see no real difference between saying that a categorical exclusion of animals does not implicate “operations of federal concern” and saying that it does not fall within the scope of the Act. Accordingly, our answer to both forms of the argument is the same. 12 NATIONAL MEAT ASSN. v. HARRIS Opinion of the Court mals on a slaughterhouse’s premises that will never suffer that fate. The Act’s implementing regulations themselves exclude many classes of animals from the slaughtering process. Swine with hog cholera, for example, are disqual- ified, see 9 CFR §309.5(a); so too are swine and other livestock “affected with anthrax,” §309.7(a). Indeed, the federal regulations prohibit the slaughter of any nonam- bulatory cattle for human consumption. See §309.3(e). As these examples demonstrate, one vital function of the Act and its regulations is to ensure that some kinds of live- stock delivered to a slaughterhouse’s gates will not be turned into meat. Under federal law, nonambulatory pigs are not among those excluded animals. But that is to say only that §599f ’s requirements differ from those of the FMIA—not that §599f ’s requirements fall outside the FMIA’s scope. Nor are respondents right to suggest that §599f ’s exclu- sion avoids the FMIA’s scope because it is designed to ensure the humane treatment of pigs, rather than the safety of meat. See, e.g., Brief for State Respondents 29; Brief for Non-State Respondents 39–40. That view mis- understands the authority—and indeed responsibility— that the FMIA gives to federal officials. Since 1978, when Congress incorporated the HMSA’s standards, the FMIA has required slaughterhouses to follow prescribed methods of humane handling, so as to minimize animals’ pain and suffering. See 21 U.S. C. §§603(b), 610(b); supra, at 2–4. A violation of those standards is a crime, see §676, and the Secretary of Agriculture can suspend inspections at—and thus effectively shut down—a slaughterhouse that dis- obeys them, see §§603(b), 610(c). To implement the Act’s humane-handling provisions, the FSIS has issued detailed regulations, see 9 CFR pt. 313, including some specifically addressing animals that cannot walk, see §§313.2(d), 313.1(c). Those rules, as earlier noted, apply throughout the time an animal is on a slaughterhouse’s premises, Cite as: 565 U. S. ____ (2012) 13 Opinion of the Court from the moment a delivery truck pulls up to the gate. See supra, at 3–4. So the FMIA addresses not just food safety, but humane treatment as well. Even California conceded at oral argument that the FSIS could issue regulations under the FMIA, similar to §599f, mandating the euthanasia of nonambulatory swine.9 See Tr. of Oral Arg. 46–47. If that is so—and it is, because of the FSIS’s authority over humane-handling methods—then §599f ’s requirements must fall within the FMIA’s scope. The Circuit decisions upholding state bans on slaughter- ing horses, on which the Ninth Circuit relied, do not de- mand any different conclusion. We express no view on those decisions, except to say that the laws sustained there differ from §599f in a significant respect. A ban on butchering horses for human consumption works at a remove from the sites and activities that the FMIA most directly governs. When such a ban is in effect, no horses will be delivered to, inspected at, or handled by a slaugh- terhouse, because no horses will be ordered for purchase in the first instance. But §599f does not and cannot work in that way. As earlier noted, many nonambulatory pigs become disabled either in transit to or after arrival at a slaughterhouse. See supra, at 6–9, and nn. 5–6. So even with §599f in effect, a swine slaughterhouse will encounter nonambulatory pigs. In that circumstance, §599f tells the slaughterhouse what to do with those animals. Unlike a horse slaughtering ban, the statute thus reaches into the slaughterhouse’s facilities and affects its daily activities. And in so doing, the California law runs smack into the FMIA’s regulations. So whatever might be said of other bans on slaughter, §599f imposes requirements within— —————— 9 Indeed, the FSIS recently solicited comment on a rulemaking peti- tion that would require all nonambulatory disabled livestock, including swine, to be humanely euthanized. See 76 Fed. Reg. 6572 (2011). The FSIS has taken no further action on that petition. 14 NATIONAL MEAT ASSN. v. HARRIS Opinion of the Court and indeed at the very heart of—the FMIA’s scope.10 IV The FMIA regulates slaughterhouses’ handling and treatment of nonambulatory pigs from the moment of their delivery through the end of the meat production process. California’s §599f endeavors to regulate the same thing, at the same time, in the same place—except by imposing different requirements. The FMIA expressly preempts such a state law. Accordingly, we reverse the judgment of the Ninth Circuit, and remand this case for further pro- ceedings consistent with this opinion. It is so ordered. —————— 10 We finally reject California’s argument, see Brief for State Re- spondents 20, that our reading of the FMIA’s preemption provision renders its saving clause insignificant. That clause provides that States may regulate slaughterhouses as to “other matters,” not ad- dressed in the express preemption clause, as long as those laws are “consistent with” the FMIA. 21 U.S. C. §678. So, for example, the Government acknowledges that state laws of general application (workplace safety regulations, building codes, etc.) will usually apply to slaughterhouses. See Tr. of Oral Arg. 22. Moreover, because the FMIA’s express preemption provision prevents States from imposing only “addition[al]” or “different” requirements, §678, States may exact civil or criminal penalties for animal cruelty or other conduct that also violates the FMIA. See §678; cf. Bates v. Dow Agrosciences, LLC, 544 U.S. 431, 447 (2005) (holding that a preemption clause barring state laws “in addition to or different” from a federal Act does not interfere with an “equivalent” state provision). Although the FMIA preempts much state law involving slaughterhouses, it thus leaves some room for the States to regulate

The Federal Meat Inspection Act (FMIA or Act), 21 U.S. C. et seq., regulates the inspection, handling, and slaughter of livestock for human We consider here whether the FMIA expressly preempts a California law dictating what slaughterhouses must do with pigs that cannot walk, known in the trade as nonam- bulatory pigs. We hold that the FMIA forecloses the chal- lenged applications of the state statute. I A The FMIA regulates a broad range of activities at slaughterhouses to ensure both the safety of meat and the humane handling of animals.1 First enacted in 1906, after —————— 1 The FMIA applies to all slaughterhouses producing meat for in- terstate and foreign commerce. See 21 U.S. C. §(h), 603(a). The FMIA also regulates slaughterhouses serving an exclusively intrastate market in any State that does not administer an inspection system with “requirements at least equal to those” of the Act. Because California has chosen not to adopt such an inspection program, 2 NATIONAL MEAT ASSN. v. HARRIS Opinion of the Court Upton Sinclair’s muckraking novel The Jungle sparked an uproar over conditions in the meatpacking industry, the Act establishes “an elaborate system of inspecti[ng]” live animals and carcasses in order “to prevent the shipment of impure, unwholesome, and unfit meat and meat-food products.” Pittsburgh Melting 4–5 (1918). And since amended in 1978, see the FMIA requires all slaughterhouses to comply with the standards for humane handling and slaughter of animals set out in the Humane Methods of Slaughter Act of 1958, (HMSA), 7 U.S. C. et seq., which originally applied only to slaughterhouses selling meat to the Federal Government. The Department of Agriculture’s Food Safety and In- spection Service (FSIS) has responsibility for administer- ing the FMIA to promote its dual goals of safe meat and humane slaughter. Over the years, the FSIS has issued extensive regulations to govern the inspection of animals and meat, as well as other aspects of slaughterhouses’ operations and facilities. See et seq. (2011). The FSIS employs about 9,000 inspectors, veterinarians, and investigators to implement its inspection regime and enforce its humane-handling requirements. See Hearings on 2012 Appropriations before the Subcommittee on Agri- culture of the House Committee on Appropriations, 112th Cong., 1st Sess., pt. 1B, p. 921 (2011). In fiscal year 2010, those personnel examined about 147 million head of live- stock and carried out more than 126,000 “humane han- dling verification procedures.” at 942–943. The FSIS’s inspection procedure begins with an “ante- mortem” examination of each animal brought to a slaugh- terhouse. See If the inspector finds no —————— the FMIA governs all slaughterhouses in the State (except for any limited to “custom slaughtering for personal, household, guest, and employee uses,” Cite as: 565 U. S. (2012) 3 Opinion of the Court evidence of disease or injury, he approves the animal for slaughter. If, at the other end of the spectrum, the inspec- tor sees that an animal is dead or dying, comatose, suffer- ing from a high fever, or afflicted with a serious disease or condition, he designates the animal as “U. S. Condemned.” See et seq. (listing diseases requiring con- demnation). A condemned animal (if not already dead) must be killed apart from the slaughtering facilities where food is produced, and no part of its carcass may be sold for human See 21 U.S. C. The inspector also has an intermediate option: If he determines that an animal has a less severe condition—or merely suspects the animal of having a disease meriting condemnation—he classifies the animal as “U. S. Suspect.” See That category includes all nonambula- tory animals not found to require condemnation.2 See Suspect livestock must be “set apart,” specially monitored, and (if not reclassified because of a change in condition) “slaughtered separately from other livestock.” Following slaughter, an inspector decides at a “post-mortem” examination which parts, if any, of the suspect animal’s carcass may be processed into food for humans. See 9 CFR pts. 310, 311. The regulations implementing the FMIA additionally prescribe methods for handling animals humanely at all stages of the slaughtering process. Those rules apply from the moment a truck carrying livestock “enters, or is in line to enter,” a slaughterhouse’s premises. Humane Handling and Slaughter of Livestock, FSIS Directive 6900.2, ch. II(I) (rev. Aug. 15, 2011). And they include specific provisions for the humane treatment of animals that cannot walk. —————— 2 The FSIS’s regulations define “non-ambulatory disabled livestock” as “livestock that cannot rise from a recumbent position or that cannot walk, including, but not limited to, those with broken appendages, severed tendons or ligaments, nerve paralysis, fractured vertebral column, or metabolic conditions.” 4 NATIONAL MEAT ASSN. v. HARRIS Opinion of the Court See (d). Under the regulations, slaughter- house employees may not drag conscious, nonambulatory animals, see and may move them only with “equipment suitable for such purposes,” Similarly, employees must place nonambulatory animals, as well as other sick and disabled livestock, in covered pens sufficient to protect the animals from “adverse cli- matic conditions.” See The FMIA contains an express preemption provision, at issue here, addressing state laws on these and similar matters. That provision’s first sentence reads: “Requirements within the scope of this [Act] with re- spect to premises, facilities and operations of any es- tablishment at which inspection is provided under this [Act] which are in addition to, or different than those made under this [Act] may not be imposed by any State.” 21 U.S. C. B In 2008, the Humane Society of the United States released an undercover video showing workers at a slaugh- terhouse in California dragging, kicking, and electro- shocking sick and disabled cows in an effort to move them. The video led the Federal Government to institute the largest beef recall in U. S. history in order to prevent consumption of meat from diseased animals. Of greater relevance here, the video also prompted the California legislature to strengthen a pre-existing statute governing the treatment of nonambulatory animals and to apply that statute to slaughterhouses regulated under the FMIA. See National Meat —————— 3 The preemption provision also includes a saving clause, which states that the Act “shall not preclude any State from making require- ment[s] or taking other action, consistent with this [Act], with respect to any other matters regulated under this [Act].” 21 U.S. C. see n. 10, infra. Cite as: 565 U. S. (2012) 5 Opinion of the Court (CA9 2010). As amended, the California of the state penal code—provides in relevant part: “(a) No slaughterhouse, stockyard, auction, market agency, or dealer shall buy, sell, or receive a nonam- bulatory animal. “(b) No slaughterhouse shall process, butcher, or sell meat or products of nonambulatory animals for human “(c) No slaughterhouse shall hold a nonambulatory animal without taking immediate action to humanely euthanize the animal.” Cal. Penal Code Ann. (West 2010). The maximum penalty for violating any of these prohibi- tions is one year in jail and a $20,000 fine. See (h). Petitioner National Meat Association (NMA) is a trade association representing meatpackers and processors, in- cluding operators of swine slaughterhouses. It sued to enjoin the enforcement of against those slaughter- houses, principally on the ground that the FMIA preempts application of the state law.4 The District Court granted the NMA’s motion for a preliminary injunction, reasoning that is expressly preempted because it requires swine “to be handled in a manner other than that pre- scribed by the FMIA” and its regulations. App. to Pet. for Cert. 36a. But the United States Court of Appeals for the Ninth Circuit vacated the injunction. According to that court, the FMIA does not expressly preempt because the state law regulates only “the kind of animal that may be slaughtered,” and not the inspection or slaughtering process We granted certiorari, 564 U. S. (2011), and now —————— 4 The Humane Society intervened to defend in the District Court. See Motion to Intervene in No. 08–1963 (ED Cal.), Record, Doc. 46. The organization continues as a respondent in this Court. 6 NATIONAL MEAT ASSN. v. HARRIS Opinion of the Court reverse. II The FMIA’s preemption clause sweeps widely—and in so doing, blocks the applications of challenged here. The clause prevents a State from imposing any additional or different—even if non-conflicting—requirements that fall within the scope of the Act and concern a slaughter- house’s facilities or operations. And at every turn imposes additional or different requirements on swine slaughterhouses: It compels them to deal with nonambula- tory pigs on their premises in ways that the federal Act and regulations do not. In essence, California’s statute substitutes a new regulatory scheme for the one the FSIS uses. Where under federal law a slaughterhouse may take one course of action in handling a nonambulatory pig, under state law the slaughterhouse must take another. Consider first what the two statutes tell a slaughter- house to do when (as not infrequently occurs) a pig be- comes injured and thus nonambulatory sometime after delivery to the slaughterhouse.5 Section 599f(c) prohibits the slaughterhouse from “hold[ing]” such an animal “with- out taking immediate action to humanely euthanize” it. And (b) provides that no part of the animal’s carcass may be “process[ed]” or “butcher[ed]” to make food. By contrast, under the FMIA and its regulations, a slaugh- terhouse may hold (without euthanizing) any nonambula- tory pig that has not been condemned. See And the slaughterhouse may process or butcher such an —————— 5 The percentage of pigs becoming nonambulatory after delivery var- ies by slaughterhouse from 0.1 percent to over 1 percent. See McGlone, Fatigued Pigs: The Final Link, Pork Magazine 14 (Mar. 2006). About 100 million pigs are slaughtered each year in the United States, see Dept. of Agriculture, National Agricultural Statistics Service, Livestock Slaughter 13 (Jan. 2011), so those percentages work out to between 100,000 and 1,000,000 pigs. Cite as: 565 U. S. (2012) 7 Opinion of the Court animal’s meat for human consumption, subject to an FSIS official’s approval at a post-mortem inspection. See The State’s proscriptions thus exceed the FMIA’s. To be sure, nothing in the federal Act requires what the state law forbids (or forbids what the state law requires); Cali- fornia is right to note that “[t]he FMIA does not mandate that ‘U. S. Suspect’ [nonambulatory] animals be placed into the human food production process.” Brief for State Respondents 31. But that is irrelevant, because the FMIA’s preemption clause covers not just conflicting, but also different or additional state requirements. It there- fore precludes California’s effort in §(b) and (c) to im- pose new rules, beyond any the FSIS has chosen to adopt, on what a slaughterhouse must do with a pig that be- comes nonambulatory during the production process. Similarly, consider how the state and federal laws ad- dress what a slaughterhouse should do when a pig is non- ambulatory at the time of delivery, usually because of harsh transportation conditions.6 Section 599f(a) of the California law bars a slaughterhouse from “receiv[ing]” or “buy[ing]” such a pig, thus obligating the slaughterhouse to refuse delivery of the animal.7 But that directive, too, deviates from any imposed by federal law. A regulation issued under the FMIA specifically authorizes slaughter- houses to buy disabled or diseased animals (including nonambulatory swine), by exempting them from a general prohibition on such purchases. See (c). —————— 6 According to one estimate, almost half of one percent of the pigs slaughtered annually in the United States become nonambulatory during the trip from farm to slaughterhouse. See National Pork Board, Transport Quality Assurance Handbook 25 (Version 4, 2010). About half that many die during transport. See 7 Section 599f(a) also bans “sell[ing]” nonambulatory animals. But because slaughterhouses (unlike other entities referenced in the provi- sion) do not typically sell live animals, that prohibition is not at issue in this case. The statute’s distinct ban on selling meat from nonambula- tory animals that have been slaughtered is discussed infra, at 9–10. 8 NATIONAL MEAT ASSN. v. HARRIS Opinion of the Court And other regulations contemplate that slaughterhouses will in fact take, rather than refuse, receipt of nonambula- tory swine. Recall that the FMIA’s regulations provide for the inspection of all pigs at delivery, see at 2—in the case of nonambulatory pigs, often right on the truck, see Humane Handling and Slaughter of Livestock, FSIS Directive 6900.2, ch. II(I). They further instruct slaugh- terhouses to kill and dispose of any nonambulatory pigs labeled “condemned,” and to slaughter separately those marked “suspect.” See In short, federal law establishes rules for handling and slaughtering nonam- bulatory pigs brought to a slaughterhouse, rather than ordering them returned to sender. So (a) and the FMIA require different things of a slaughterhouse con- fronted with a delivery truck containing nonambula- tory swine. The former says “do not receive or buy them”; the latter does not. The Humane Society counters that at least (a)’s ban on buying nonambulatory animals escapes preemp- tion because that provision applies no matter when or where a purchase takes place. The argument proceeds in three steps: (1) (a)’s ban covers purchases of non- ambulatory pigs made prior to delivery, away from the slaughterhouse itself (say, at a farm or auction); (2) the State may regulate such offsite purchases because they do not involve a slaughterhouse’s “premises, facilities and operations,” which is a condition of preemption under the FMIA; and (3) no different result should obtain just be- cause a slaughterhouse structures its swine purchases to occur at delivery, on its own property. See Brief for Non- State Respondents 43–45. But this argument fails on two grounds. First, its pre- liminary steps have no foundation in the record. Until a stray comment at oral argument, see Tr. of Oral Arg. 50, neither the State nor the Humane Society had disputed the NMA’s assertion that slaughterhouses buy pigs at Cite as: 565 U. S. (2012) 9 Opinion of the Court delivery (or still later, upon successful ante-mortem in- spection). See Brief for Petitioner 46, n. 18; Brief for Non- State Respondents 44; Brief for State Respondents 16, n. 5. Nor had the parties presented evidence that a signif- icant number of pigs become nonambulatory before ship- ment, when any offsite purchases would occur. The record therefore does not disclose whether (a)’s ban on purchase ever applies beyond the slaughterhouse gate, much less how an application of that kind would affect a slaughterhouse’s operations. And because that is so, we have no basis for deciding whether the FMIA would preempt it. Second, even assuming that a State could regulate offsite purchases, the concluding step of the Humane Society’s argument would not follow. The FMIA’s preemption clause expressly focuses on “premises, facili- ties and operations”—at bottom, the slaughtering and processing of animals at a given location. So the distinc- tion between a slaughterhouse’s site-based activities and its more far-flung commercial dealings is not, as the Hu- mane Society contends, an anomaly that courts should strain to avoid. It is instead a fundamental feature of the FMIA’s preemption clause. For that reason, the Humane Society’s stronger argu- ment concerns California’s effort to regulate the last stage of a slaughterhouse’s business—the ban in (b) on “sell[ing] meat or products of nonambulatory animals for human ” The Government acknowledges that the FMIA’s preemption clause does not usually fore- close “state regulation of the commercial sales activities of slaughterhouses.” Brief for United States as Amicus Curiae 17. And the Humane Society asserts, in line with that general rule, that (b)’s ban on sales does not regulate a slaughterhouse’s “operations” because it kicks in only after they have ended: Once meat from a slaugh- tered pig has passed a post-mortem inspection, the Act “is not concerned with whether or how it is ever actually 10 NATIONAL MEAT ASSN. v. HARRIS Opinion of the Court sold.” Brief for Non-State Respondents 45. At most, the Humane Society claims, (b)’s ban on sales offers an “incentiv[e]” to a slaughterhouse to take nonambulatory pigs out of the meat production process. And California may so “motivate[]” an operational choice with- out running afoul of the FMIA’s preemption provision. (quoting Bates v. Dow Agrosciences LLC, 544 U.S. 431, 443 (2005)). But this argument mistakes how the prohibition on sales operates within as a whole. The sales ban is a criminal proscription calculated to help implement and enforce each of the section’s other regulations—its prohibi- tion of receipt and purchase, its bar on butchering and processing, and its mandate of immediate euthanasia. The idea—and the inevitable effect—of the provision is to make sure that slaughterhouses remove nonambulatory pigs from the production process (or keep them out of the process from the beginning) by criminalizing the sale of their meat. That, we think, is something more than an “incentive” or “motivat[or]”; the sales ban instead func- tions as a command to slaughterhouses to structure their operations in the exact way the remainder of man- dates. And indeed, if the sales ban were to avoid the FMIA’s preemption clause, then any State could impose any regulation on slaughterhouses just by framing it as a ban on the sale of meat produced in whatever way the State disapproved. That would make a mockery of the FMIA’s preemption provision. Cf. Engine Mfrs. Assn. v. South Coast Air Quality Management Dist., 255 (2004) (stating that it “would make no sense” to allow state regulations to escape preemption because they ad- dressed the purchase, rather than manufacture, of a fed- erally regulated product). Like the rest of the sales ban regulates how slaughterhouses must deal with non- ambulatory pigs on their premises. The FMIA therefore preempts it for all the same reasons. Cite as: 565 U. S. (2012) 11 Opinion of the Court III California’s and the Humane Society’s broadest argu- ment against preemption maintains that all of ’s challenged provisions fall outside the “scope” of the FMIA because they exclude a class of animals from the slaugh- tering process. See 21 U.S. C. (preempting certain requirements “within the scope of this [Act]”). According to this view, the Act (and the FSIS’s authority under it) extends only to “animals that are going to be turned into meat,” Tr. of Oral Arg. 28—or to use another phrase, animals that will “be slaughtered for purposes of human food production,” Brief for State Respondents 19 (emphasis deleted). Section 599f avoids the scope of the Act, respondents claim, by altogether removing nonambu- latory pigs from the slaughtering process.8 The Ninth Circuit accepted this argument, analogizing to state laws upheld in two other Circuits banning the slaughter of horses for human and Empacadora de Carnes de Fresnillo, S. A. de ). According to the Court of Appeals, “states are free to decide which animals may be turned into meat.” 1099. We think not. The FMIA’s scope includes not only “animals that are going to be turned into meat,” but ani- —————— 8 California’sbrief sometimes casts its argument in terms of the “op- erations” language of the FMIA’s preemption clause (although the State appeared to abandon this phrasing at oral argument). In this version of the claim, California contends that the “operations” of a slaughterhouse are only those “of federal concern,” and that excluding a class of ani- mals from the slaughtering process does not impinge on such opera- tions. Brief for State Respondents 20, n. 9; see also at 20–21. We see no real difference between saying that a categorical exclusion of animals does not implicate “operations of federal concern” and saying that it does not fall within the scope of the Act. Accordingly, our answer to both forms of the argument is the same. 12 NATIONAL MEAT ASSN. v. HARRIS Opinion of the Court mals on a slaughterhouse’s premises that will never suffer that fate. The Act’s implementing regulations themselves exclude many classes of animals from the slaughtering process. Swine with hog cholera, for example, are disqual- ified, see (a); so too are swine and other livestock “affected with anthrax,” Indeed, the federal regulations prohibit the slaughter of any nonam- bulatory cattle for human See As these examples demonstrate, one vital function of the Act and its regulations is to ensure that some kinds of live- stock delivered to a slaughterhouse’s gates will not be turned into meat. Under federal law, nonambulatory pigs are not among those excluded animals. But that is to say only that ’s requirements differ from those of the FMIA—not that ’s requirements fall outside the FMIA’s scope. Nor are respondents right to suggest that ’s exclu- sion avoids the FMIA’s scope because it is designed to ensure the humane treatment of pigs, rather than the safety of meat. See, e.g., Brief for State Respondents 29; Brief for Non-State Respondents 39–40. That view mis- understands the authority—and indeed responsibility— that the FMIA gives to federal officials. Since 1978, when Congress incorporated the HMSA’s standards, the FMIA has required slaughterhouses to follow prescribed methods of humane handling, so as to minimize animals’ pain and suffering. See 21 U.S. C. 610(b); at 2–4. A violation of those standards is a crime, see and the Secretary of Agriculture can suspend inspections at—and thus effectively shut down—a slaughterhouse that dis- obeys them, see 610(c). To implement the Act’s humane-handling provisions, the FSIS has issued detailed regulations, see 9 CFR pt. 313, including some specifically addressing animals that cannot walk, see 313.1(c). Those rules, as earlier noted, apply throughout the time an animal is on a slaughterhouse’s premises, Cite as: 565 U. S. (2012) 13 Opinion of the Court from the moment a delivery truck pulls up to the gate. See –4. So the FMIA addresses not just food safety, but humane treatment as well. Even California conceded at oral argument that the FSIS could issue regulations under the FMIA, similar to mandating the euthanasia of nonambulatory swine.9 See Tr. of Oral Arg. 46–47. If that is so—and it is, because of the FSIS’s authority over humane-handling methods—then ’s requirements must fall within the FMIA’s scope. The Circuit decisions upholding state bans on slaughter- ing horses, on which the Ninth Circuit relied, do not de- mand any different conclusion. We express no view on those decisions, except to say that the laws sustained there differ from in a significant respect. A ban on butchering horses for human consumption works at a remove from the sites and activities that the FMIA most directly governs. When such a ban is in effect, no horses will be delivered to, inspected at, or handled by a slaugh- terhouse, because no horses will be ordered for purchase in the first instance. But does not and cannot work in that way. As earlier noted, many nonambulatory pigs become disabled either in transit to or after arrival at a slaughterhouse. See at 6–9, and nn. 5–6. So even with in effect, a swine slaughterhouse will encounter nonambulatory pigs. In that circumstance, tells the slaughterhouse what to do with those animals. Unlike a horse slaughtering ban, the statute thus reaches into the slaughterhouse’s facilities and affects its daily activities. And in so doing, the California law runs smack into the FMIA’s regulations. So whatever might be said of other bans on slaughter, imposes requirements within— —————— 9 Indeed, the FSIS recently solicited comment on a rulemaking peti- tion that would require all nonambulatory disabled livestock, including swine, to be humanely euthanized. See (2011). The FSIS has taken no further action on that petition. 14 NATIONAL MEAT ASSN. v. HARRIS Opinion of the Court and indeed at the very heart of—the FMIA’s scope.10 IV The FMIA regulates slaughterhouses’ handling and treatment of nonambulatory pigs from the moment of their delivery through the end of the meat production process. California’s endeavors to regulate the same thing, at the same time, in the same place—except by imposing different requirements. The FMIA expressly preempts such a state law. Accordingly, we reverse the judgment of the Ninth Circuit, and remand this case for further pro- ceedings consistent with this opinion. It is so ordered. —————— 10 We finally reject California’s argument, see Brief for State Re- spondents 20, that our reading of the FMIA’s preemption provision renders its saving clause insignificant. That clause provides that States may regulate slaughterhouses as to “other matters,” not ad- dressed in the express preemption clause, as long as those laws are “consistent with” the FMIA. 21 U.S. C. So, for example, the Government acknowledges that state laws of general application (workplace safety regulations, building codes, etc.) will usually apply to slaughterhouses. See Tr. of Oral Arg. 22. Moreover, because the FMIA’s express preemption provision prevents States from imposing only “addition[al]” or “different” requirements, States may exact civil or criminal penalties for animal cruelty or other conduct that also violates the FMIA. See cf. Bates v. Dow Agrosciences, LLC, 544 U.S. 431, 447 (2005) (holding that a preemption clause barring state laws “in addition to or different” from a federal Act does not interfere with an “equivalent” state provision). Although the FMIA preempts much state law involving slaughterhouses, it thus leaves some room for the States to regulate

Justice O'Connor

majority

Florida Bar v. Went for It, Inc.

1995-06-21

https://www.courtlistener.com/opinion/117963/florida-bar-v-went-for-it-inc/

https://www.courtlistener.com/api/rest/v3/clusters/117963/

1994-086

Rules of the Florida Bar prohibit personal injury lawyers from sending targeted direct-mail solicitations to victims and their relatives for 30 days following an accident or disaster. This case asks us to consider whether such Rules violate the First and Fourteenth Amendments of the Constitution. We hold that in the circumstances presented here, they do not. I In 1989, the Florida Bar (Bar) completed a 2-year study of the effects of lawyer advertising on public opinion. After conducting hearings, commissioning surveys, and reviewing extensive public commentary, the Bar determined that several changes to its advertising rules were in order. In late 1990, the Florida Supreme Court adopted the Bar's proposed amendments with some modifications. The Florida Bar: Petition to Amend the Rules Regulating the Florida Bar— Advertising Issues, 571 So. 2d 451 (Fla. 1990). Two of these amendments are at issue in this case. Rule 4-7.4(b)(1) provides that "[a] lawyer shall not send, or knowingly permit to be sent, . . . a written communication to a prospective client for the purpose of obtaining professional employment if: (A) the written communication concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication is addressed or a relative of that person, unless the accident or disaster occurred more than 30 days prior to the mailing of the communication." Rule 4-7.8(a) states that "[a] lawyer shall not accept referrals from a lawyer referral service unless the service: (1) engages in no communication with the public and in no direct contact with prospective clients in a manner that would violate the Rules of Professional Conduct if the communication or contact were made by the lawyer." Together, these Rules create a brief 30-day blackout period after an accident during which lawyers may not, directly or *621 indirectly, single out accident victims or their relatives in order to solicit their business. In March 1992, G. Stewart McHenry and his wholly owned lawyer referral service, Went For It, Inc., filed this action for declaratory and injunctive relief in the United States District Court for the Middle District of Florida challenging Rules 4-7.4(b)(1) and 4-7.8(a) as violative of the First and Fourteenth Amendments to the Constitution. McHenry alleged that he routinely sent targeted solicitations to accident victims or their survivors within 30 days after accidents and that he wished to continue doing so in the future. Went For It, Inc., represented that it wished to contact accident victims or their survivors within 30 days of accidents and to refer potential clients to participating Florida lawyers. In October 1992, McHenry was disbarred for reasons unrelated to this suit, Florida Bar v. McHenry, 605 So. 2d 459 (Fla. 1992). Another Florida lawyer, John T. Blakely, was substituted in his stead. The District Court referred the parties' competing summary judgment motions to a Magistrate Judge, who concluded that the Bar had substantial government interests, predicated on a concern for professionalism, both in protecting the personal privacy and tranquility of recent accident victims and their relatives and in ensuring that these individuals do not fall prey to undue influence or overreaching. Citing the Bar's extensive study, the Magistrate Judge found that the Rules directly serve those interests and sweep no further than reasonably necessary. The Magistrate recommended that the District Court grant the Bar's motion for summary judgment on the ground that the Rules pass constitutional muster. The District Court rejected the Magistrate Judge's report and recommendations and entered summary judgment for the plaintiffs, 808 F. Supp. 1543 (MD Fla. 1992), relying on Bates v. State Bar of Ariz., 433 U.S. 350 (1977), and subsequent *622 cases. The Eleventh Circuit affirmed on similar grounds, McHenry v. Florida Bar, 21 F.3d 1038 (1994). The panel noted, in its conclusion, that it was "disturbed that Bates and its progeny require the decision" that it reached, 21 F.3d, at 1045. We granted certiorari, 512 U.S. 1289 (1994), and now reverse. II A Constitutional protection for attorney advertising, and for commercial speech generally, is of recent vintage. Until the mid-1970's, we adhered to the broad rule laid out in Valentine v. Chrestensen, 316 U.S. 52, 54 (1942), that, while the First Amendment guards against government restriction of speech in most contexts, "the Constitution imposes no such restraint on government as respects purely commercial advertising." In 1976, the Court changed course. In Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, we invalidated a state statute barring pharmacists from advertising prescription drug prices. At issue was speech that involved the idea that "`I will sell you the X prescription drug at the Y price.' " Id., at 761. Striking the ban as unconstitutional, we rejected the argument that such speech "is so removed from `any exposition of ideas,' and from `truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government,' that it lacks all protection." Id., at 762 (citations omitted). In Virginia Bd., the Court limited its holding to advertising by pharmacists, noting that "[p]hysicians and lawyers . . . do not dispense standardized products; they render professional services of almost infinite variety and nature, with the consequent enhanced possibility for confusion and deception if they were to undertake certain kinds of advertising." Id., at 773, n. 25 (emphasis in original). One year later, however, the Court applied the Virginia Bd. principles to invalidate a state rule prohibiting lawyers from advertising in newspapers *623 and other media. In Bates v. State Bar of Arizona, supra, the Court struck a ban on price advertising for what it deemed "routine" legal services: "the uncontested divorce, the simple adoption, the uncontested personal bankruptcy, the change of name, and the like." 433 U.S., at 372. Expressing confidence that legal advertising would only be practicable for such simple, standardized services, the Court rejected the State's proffered justifications for regulation. Nearly two decades of cases have built upon the foundation laid by Bates. It is now well established that lawyer advertising is commercial speech and, as such, is accorded a measure of First Amendment protection. See, e. g., Shapero v. Kentucky Bar Assn., 486 U.S. 466, 472 (1988); Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626, 637 (1985); In re R. M. J., 455 U.S. 191, 199 (1982). Such First Amendment protection, of course, is not absolute. We have always been careful to distinguish commercial speech from speech at the First Amendment's core. "`[C]ommercial speech [enjoys] a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values,' and is subject to `modes of regulation that might be impermissible in the realm of noncommercial expression.' " Board of Trustees of State Univ. of N. Y. v. Fox, 492 U.S. 469, 477 (1989), quoting Ohralik v. Ohio State Bar Assn., 436 U.S. 447, 456 (1978). We have observed that "`[t]o require a parity of constitutional protection for commercial and noncommercial speech alike could invite dilution, simply by a leveling process, of the force of the Amendment's guarantee with respect to the latter kind of speech.' " 492 U.S., at 481, quoting Ohralik, supra, at 456. Mindful of these concerns, we engage in "intermediate" scrutiny of restrictions on commercial speech, analyzing them under the framework set forth in Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U.S. 557 (1980). Under Central Hudson, the government may *624 freely regulate commercial speech that concerns unlawful activity or is misleading. Id., at 563-564. Commercial speech that falls into neither of those categories, like the advertising at issue here, may be regulated if the government satisfies a test consisting of three related prongs: First, the government must assert a substantial interest in support of its regulation; second, the government must demonstrate that the restriction on commercial speech directly and materially advances that interest; and third, the regulation must be "`narrowly drawn.' " Id., at 564-565. B "Unlike rational basis review, the Central Hudson standard does not permit us to supplant the precise interests put forward by the State with other suppositions," Edenfield v. Fane, 507 U.S. 761, 768 (1993). The Bar asserts that it has a substantial interest in protecting the privacy and tranquility of personal injury victims and their loved ones against intrusive, unsolicited contact by lawyers. See Brief for Petitioner 8, 25-27; 21 F.3d, at 1043-1044.[1] This interest obviously factors into the Bar's paramount (and repeatedly professed) objective of curbing activities that "negatively affec[t] the administration of justice." The Florida Bar: Petition to Amend the Rules Regulating the Florida Bar— Advertising Issues, 571 So. 2d, at 455; see also Brief for Petitioner 7, 14, 24; 21 F.3d, at 1043 (describing Bar's effort "to preserve the integrity of the legal profession"). *625 Because direct-mail solicitations in the wake of accidents are perceived by the public as intrusive, the Bar argues, the reputation of the legal profession in the eyes of Floridians has suffered commensurately. See Pet. for Cert. 14-15; Brief for Petitioner 28-29. The regulation, then, is an effort to protect the flagging reputations of Florida lawyers by preventing them from engaging in conduct that, the Bar maintains, "`is universally regarded as deplorable and beneath common decency because of its intrusion upon the special vulnerability and private grief of victims or their families.' " Brief for Petitioner 28, quoting In re Anis, 126 N. J. 448, 458, 599 A.2d 1265, 1270 (1992). We have little trouble crediting the Bar's interest as substantial. On various occasions we have accepted the proposition that "States have a compelling interest in the practice of professions within their boundaries, and . . . as part of their power to protect the public health, safety, and other valid interests they have broad power to establish standards for licensing practitioners and regulating the practice of professions." Goldfarb v. Virginia State Bar, 421 U.S. 773, 792 (1975); see also Ohralik, supra, at 460; Cohen v. Hurley, 366 U.S. 117, 124 (1961). Our precedents also leave no room for doubt that "the protection of potential clients' privacy is a substantial state interest." See Edenfield, supra, at 769. In other contexts, we have consistently recognized that "[t]he State's interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society." Carey v. Brown, 447 U.S. 455, 471 (1980). Indeed, we have noted that "a special benefit of the privacy all citizens enjoy within their own walls, which the State may legislate to protect, is an ability to avoid intrusions." Frisby v. Schultz, 487 U.S. 474, 484— 485 (1988). Under Central Hudson `s second prong, the State must demonstrate that the challenged regulation "advances the Government's interest `in a direct and material way.' " *626 Rubin v. Coors Brewing Co., 514 U.S. 476, 487 (1995), quoting Edenfield, supra, at 767. That burden, we have explained, "`is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.' " 514 U.S., at 487, quoting Edenfield, supra, at 770-771. In Edenfield, the Court invalidated a Florida ban on in-person solicitation by certified public accountants (CPA's). We observed that the State Board of Accountancy had "present[ed] no studies that suggest personal solicitation of prospective business clients by CPA's creates the dangers of fraud, overreaching, or compromised independence that the Board claims to fear." 507 U.S., at 771. Moreover, "[t]he record [did] not disclose any anecdotal evidence, either from Florida or another State, that validate[d] the Board's suppositions." Ibid. In fact, we concluded that the only evidence in the record tended to "contradic[t], rather than strengthe[n], the Board's submissions." Id., at 772. Finding nothing in the record to substantiate the State's allegations of harm, we invalidated the regulation. The direct-mail solicitation regulation before us does not suffer from such infirmities. The Bar submitted a 106page summary of its 2-year study of lawyer advertising and solicitation to the District Court. That summary contains data—both statistical and anecdotal—supporting the Bar's contentions that the Florida public views direct-mail solicitations in the immediate wake of accidents as an intrusion on privacy that reflects poorly upon the profession. As of June 1989, lawyers mailed 700,000 direct solicitations in Florida annually, 40% of which were aimed at accident victims or their survivors. Summary of the Record in No. 74,987 (Fla.) on Petition to Amend the Rules Regulating Lawyer Advertising (hereinafter Summary of Record), App. H, p. 2. A survey of Florida adults commissioned by the Bar indicated that Floridians "have negative feelings about *627 those attorneys who use direct mail advertising." Magid Associates, Attitudes & Opinions Toward Direct Mail Advertising by Attorneys (Dec. 1987), Summary of Record, App. C(4), p. 6. Fifty-four percent of the general population surveyed said that contacting persons concerning accidents or similar events is a violation of privacy. Id., at 7. A random sampling of persons who received direct-mail advertising from lawyers in 1987 revealed that 45% believed that directmail solicitation is "designed to take advantage of gullible or unstable people"; 34% found such tactics "annoying or irritating"; 26% found it "an invasion of your privacy"; and 24% reported that it "made you angry." Ibid. Significantly, 27% of direct-mail recipients reported that their regard for the legal profession and for the judicial process as a whole was "lower" as a result of receiving the direct mail. Ibid. The anecdotal record mustered by the Bar is noteworthy for its breadth and detail. With titles like "Scavenger Lawyers" (The Miami Herald, Sept. 29, 1987) and "Solicitors Out of Bounds" (St. Petersburg Times, Oct. 26, 1987), newspaper editorial pages in Florida have burgeoned with criticism of Florida lawyers who send targeted direct mail to victims shortly after accidents. See Summary of Record, App. B, pp. 1-8 (excerpts from articles); see also Peltz, Legal Advertising—Opening Pandora's Box, 19 Stetson L. Rev. 43, 116 (1989) (listing Florida editorials critical of direct-mail solicitation of accident victims in 1987, several of which are referenced in the record). The study summary also includes page upon page of excerpts from complaints of direct-mail recipients. For example, a Florida citizen described how he was "`appalled and angered by the brazen attempt' " of a law firm to solicit him by letter shortly after he was injured and his fiancee was killed in an auto accident. Summary of Record, App. I(1), p. 2. Another found it "`despicable and inexcusable' " that a Pensacola lawyer wrote to his mother three days after his father's funeral. Ibid. Another described how she was "`astounded' " and then "`very angry' " when *628 she received a solicitation following a minor accident. Id., at 3. Still another described as "`beyond comprehension' " a letter his nephew's family received the day of the nephew's funeral. Ibid. One citizen wrote, "`I consider the unsolicited contact from you after my child's accident to be of the rankest form of ambulance chasing and in incredibly poor taste. . . . I cannot begin to express with my limited vocabulary the utter contempt in which I hold you and your kind.' " Ibid. In light of this showing—which respondents at no time refuted, save by the conclusory assertion that the Rule lacked "any factual basis," Plaintiffs' Motion for Summary Judgment and Supplementary Memorandum of Law in No. 92-370— Civ. (MD Fla.), p. 5—we conclude that the Bar has satisfied the second prong of the Central Hudson test. In dissent, Justice Kennedy complains that we have before us few indications of the sample size or selection procedures employed by Magid Associates (a nationally renowned consulting firm) and no copies of the actual surveys employed. See post, at 640. As stated, we believe the evidence adduced by the Bar is sufficient to meet the standard elaborated in Edenfield v. Fane, 507 U.S. 761 (1993). In any event, we do not read our case law to require that empirical data come to us accompanied by a surfeit of background information. Indeed, in other First Amendment contexts, we have permitted litigants to justify speech restrictions by reference to studies and anecdotes pertaining to different locales altogether, see Renton v. Playtime Theatres, Inc., 475 U.S. 41, 50-51 (1986); Barnes v. Glen Theatre, Inc., 501 U.S. 560, 584-585 (1991) (Souter, J., concurring in judgment), or even, in a case applying strict scrutiny, to justify restrictions based solely on history, consensus, and "simple common sense," Burson v. Freeman, 504 U.S. 191, 211 (1992). Nothing in Edenfield, a case in which the State offered no evidence or anecdotes in support of its restriction, requires more. After scouring the record, we are satisfied that the ban on directmail *629 solicitation in the immediate aftermath of accidents, unlike the rule at issue in Edenfield, targets a concrete, nonspeculative harm. In reaching a contrary conclusion, the Court of Appeals determined that this case was governed squarely by Shapero v. Kentucky Bar Assn., 486 U.S. 466 (1988). Making no mention of the Bar's study, the court concluded that "`a targeted letter [does not] invade the recipient's privacy any more than does a substantively identical letter mailed at large. The invasion, if any, occurs when the lawyer discovers the recipient's legal affairs, not when he confronts the recipient with the discovery.' " 21 F.3d, at 1044, quoting Shapero, supra, at 476. In many cases, the Court of Appeals explained, "this invasion of privacy will involve no more than reading the newspaper." 21 F.3d, at 1044. While some of Shapero `s language might be read to support the Court of Appeals' interpretation, Shapero differs in several fundamental respects from the case before us. First and foremost, Shapero `s treatment of privacy was casual. Contrary to the dissent's suggestions, post, at 637-638, the State in Shapero did not seek to justify its regulation as a measure undertaken to prevent lawyers' invasions of privacy interests. See generally Brief for Respondent in Shapero v. Kentucky Bar Assn., O. T. 1987, No. 87-16. Rather, the State focused exclusively on the special dangers of overreaching inhering in targeted solicitations. Ibid. Second, in contrast to this case, Shapero dealt with a broad ban on all direct-mail solicitations, whatever the time frame and whoever the recipient. Finally, the State in Shapero assembled no evidence attempting to demonstrate any actual harm caused by targeted direct mail. The Court rejected the State's effort to justify a prophylactic ban on the basis of blanket, untested assertions of undue influence and overreaching. 486 U.S., at 475. Because the State did not make a privacy-based argument at all, its empirical showing on that issue was similarly infirm. *630 We find the Court's perfunctory treatment of privacy in Shapero to be of little utility in assessing this ban on targeted solicitation of victims in the immediate aftermath of accidents. While it is undoubtedly true that many people find the image of lawyers sifting through accident and police reports in pursuit of prospective clients unpalatable and invasive, this case targets a different kind of intrusion. The Bar has argued, and the record reflects, that a principal purpose of the ban is "protecting the personal privacy and tranquility of [Florida's] citizens from crass commercial intrusion by attorneys upon their personal grief in times of trauma." Brief for Petitioner 8; cf. Summary of Record, App. I(1) (citizen commentary describing outrage at lawyers' timing in sending solicitation letters). The intrusion targeted by the Bar's regulation stems not from the fact that a lawyer has learned about an accident or disaster (as the Court of Appeals notes, in many instances a lawyer need only read the newspaper to glean this information), but from the lawyer's confrontation of victims or relatives with such information, while wounds are still open, in order to solicit their business. In this respect, an untargeted letter mailed to society at large is different in kind from a targeted solicitation; the untargeted letter involves no willful or knowing affront to or invasion of the tranquility of bereaved or injured individuals and simply does not cause the same kind of reputational harm to the profession unearthed by the Bar's study. Nor do we find Bolger v. Youngs Drug Products Corp., 463 U.S. 60 (1983), dispositive of the issue, despite any superficial resemblance. In Bolger, we rejected the Federal Government's paternalistic effort to ban potentially "offensive" and "intrusive" direct-mail advertisements for contraceptives. Minimizing the Government's allegations of harm, we reasoned that "[r]ecipients of objectionable mailings . . . may `"effectively avoid further bombardment of their sensibilities simply by averting their eyes."` " Id., at 72, quoting Con- *631 solidated Edison Co. of N. Y. v. Public Serv. Comm'n of N. Y., 447 U.S. 530, 542 (1980), in turn quoting Cohen v. California, 403 U.S. 15, 21 (1971). We found that the "`short, though regular, journey from mail box to trash can . . . is an acceptable burden, at least so far as the Constitution is concerned.' " 463 U.S., at 72 (ellipses in original), quoting Lamont v. Commissioner of Motor Vehicles, 269 F. Supp. 880, 883 (SDNY), summarily aff'd, 386 F.2d 449 (CA2 1967). Concluding that citizens have at their disposal ample means of averting any substantial injury inhering in the delivery of objectionable contraceptive material, we deemed the State's intercession unnecessary and unduly restrictive. Here, in contrast, the harm targeted by the Bar cannot be eliminated by a brief journey to the trash can. The purpose of the 30-day targeted direct-mail ban is to forestall the outrage and irritation with the state-licensed legal profession that the practice of direct solicitation only days after accidents has engendered. The Bar is concerned not with citizens' "offense" in the abstract, see post, at 638-639, but with the demonstrable detrimental effects that such "offense" has on the profession it regulates. See Brief for Petitioner 7, 14, 24, 28.[2] Moreover, the harm posited by the Bar is as much a function of simple receipt of targeted solicitations within days of accidents as it is a function of the letters' contents. Throwing the letter away shortly after opening it may minimize the latter intrusion, but it does little to combat the former. We see no basis in Bolger, nor in the other, similar cases cited by the dissent, post, at 638-639, for dismissing the Bar's assertions of harm, particularly *632 given the unrefuted empirical and anecdotal basis for the Bar's conclusions. Passing to Central Hudson `s third prong, we examine the relationship between the Bar's interests and the means chosen to serve them. See Board of Trustees of State Univ. of N. Y. v. Fox, 492 U. S., at 480. With respect to this prong, the differences between commercial speech and noncommercial speech are manifest. In Fox, we made clear that the "least restrictive means" test has no role in the commercial speech context. Ibid. "What our decisions require," instead, "is a `fit' between the legislature's ends and the means chosen to accomplish those ends,' a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is `in proportion to the interest served,' that employs not necessarily the least restrictive means but . . . a means narrowly tailored to achieve the desired objective." Ibid. (citations omitted). Of course, we do not equate this test with the less rigorous obstacles of rational basis review; in Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 417, n. 13 (1993), for example, we observed that the existence of "numerous and obvious less-burdensome alternatives to the restriction on commercial speech . . . is certainly a relevant consideration in determining whether the `fit' between ends and means is reasonable." Respondents levy a great deal of criticism, echoed in the dissent, post, at 642-644, at the scope of the Bar's restriction on targeted mail. "[B]y prohibiting written communications to all people, whatever their state of mind," respondents charge, the Rule "keeps useful information from those accident victims who are ready, willing and able to utilize a lawyer's advice." Brief for Respondents 14. This criticism may be parsed into two components. First, the Rule does not distinguish between victims in terms of the severity of their injuries. According to respondents, the Rule is unconstitutionally overinclusive insofar as it bans targeted mailings *633 even to citizens whose injuries or grief are relatively minor. Id., at 15. Second, the Rule may prevent citizens from learning about their legal options, particularly at a time when other actors—opposing counsel and insurance adjusters—may be clamoring for victims' attentions. Any benefit arising from the Bar's regulation, respondents implicitly contend, is outweighed by these costs. We are not persuaded by respondents' allegations of constitutional infirmity. We find little deficiency in the ban's failure to distinguish among injured Floridians by the severity of their pain or the intensity of their grief. Indeed, it is hard to imagine the contours of a regulation that might satisfy respondents on this score. Rather than drawing difficult lines on the basis that some injuries are "severe" and some situations appropriate (and others, presumably, inappropriate) for grief, anger, or emotion, the Bar has crafted a ban applicable to all postaccident or disaster solicitations for a brief 30-day period. Unlike respondents, we do not see "numerous and obvious less-burdensome alternatives" to Florida's short temporal ban. Cincinnati, supra, at 417, n. 13. The Bar's rule is reasonably well tailored to its stated objective of eliminating targeted mailings whose type and timing are a source of distress to Floridians, distress that has caused many of them to lose respect for the legal profession. Respondents' second point would have force if the Bar's Rule were not limited to a brief period and if there were not many other ways for injured Floridians to learn about the availability of legal representation during that time. Our lawyer advertising cases have afforded lawyers a great deal of leeway to devise innovative ways to attract new business. Florida permits lawyers to advertise on prime-time television and radio as well as in newspapers and other media. They may rent space on billboards. They may send untargeted letters to the general population, or to discrete segments thereof. There are, of course, pages upon pages devoted *634 to lawyers in the Yellow Pages of Florida telephone directories. These listings are organized alphabetically and by area of specialty. See generally Rule 4-7.2(a), Rules Regulating The Florida Bar ("[A] lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, billboards and other signs, radio, television, and recorded messages the public may access by dialing a telephone number, or through written communication not involving solicitation as defined in rule 4-7.4"); The Florida Bar: Petition to Amend the Rules Regulating the Florida Bar—Advertising Issues, 571 So. 2d, at 461. These ample alternative channels for receipt of information about the availability of legal representation during the 30-day period following accidents may explain why, despite the ample evidence, testimony, and commentary submitted by those favoring (as well as opposing) unrestricted direct-mail solicitation, respondents have not pointed to—and we have not independently found—a single example of an individual case in which immediate solicitation helped to avoid, or failure to solicit within 30 days brought about, the harms that concern the dissent, see post, at 643. In fact, the record contains considerable empirical survey information suggesting that Floridians have little difficulty finding a lawyer when they need one. See, e. g., Summary of Record, App. C(4), p. 7; id., App. C(5), p. 8. Finding no basis to question the commonsense conclusion that the many alternative channels for communicating necessary information about attorneys are sufficient, we see no defect in Florida's regulation. III Speech by professionals obviously has many dimensions. There are circumstances in which we will accord speech by attorneys on public issues and matters of legal representation the strongest protection our Constitution has to offer. See, e. g., Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991); In re Primus, 436 U.S. 412 (1978). This case, however, *635 concerns pure commercial advertising, for which we have always reserved a lesser degree of protection under the First Amendment. Particularly because the standards and conduct of state-licensed lawyers have traditionally been subject to extensive regulation by the States, it is all the more appropriate that we limit our scrutiny of state regulations to a level commensurate with the "`subordinate position' " of commercial speech in the scale of First Amendment values. Fox, 492 U. S., at 477, quoting Ohralik, 436 U. S., at 456. We believe that the Bar's 30-day restriction on targeted direct-mail solicitation of accident victims and their relatives withstands scrutiny under the three-pronged Central Hudson test that we have devised for this context. The Bar has substantial interest both in protecting injured Floridians from invasive conduct by lawyers and in preventing the erosion of confidence in the profession that such repeated invasions have engendered. The Bar's proffered study, unrebutted by respondents below, provides evidence indicating that the harms it targets are far from illusory. The palliative devised by the Bar to address these harms is narrow both in scope and in duration. The Constitution, in our view, requires nothing more. The judgment of the Court of Appeals, accordingly, is Reversed.

Rules of the Florida Bar prohibit personal injury lawyers from sending targeted direct-mail solicitations to victims and their relatives for 30 days following an accident or disaster. This case asks us to consider whether such Rules violate the First and Fourteenth Amendments of the Constitution. We hold that in the circumstances presented here, they do not. I In 1989, the Florida Bar (Bar) completed a 2-year study of the effects of lawyer advertising on public opinion. After conducting hearings, commissioning surveys, and reviewing extensive public commentary, the Bar determined that several changes to its advertising rules were in order. In late 0, the Florida Supreme Court adopted the Bar's proposed amendments with some modifications. The Florida Bar: Petition to Amend the Rules Regulating the Florida Bar— Advertising Two of these amendments are at issue in this case. Rule 4-7.4(b)(1) provides that "[a] lawyer shall not send, or knowingly permit to be sent, a written communication to a prospective client for the purpose of obtaining professional employment if: (A) the written communication concerns an action for personal injury or wrongful death or otherwise relates to an accident or disaster involving the person to whom the communication is addressed or a relative of that person, unless the accident or disaster occurred more than 30 days prior to the mailing of the communication." Rule 4-7.8(a) states that "[a] lawyer shall not accept referrals from a lawyer referral service unless the service: (1) engages in no communication with the public and in no direct contact with prospective clients in a manner that would violate the Rules of Professional Conduct if the communication or contact were made by the lawyer." Together, these Rules create a brief 30-day blackout period after an accident during which lawyers may not, directly or *6 indirectly, single out accident victims or their relatives in order to solicit their business. In March G. Stewart McHenry and his wholly owned lawyer referral service, Went For It, Inc., filed this action for declaratory and injunctive relief in the United States District Court for the Middle District of Florida challenging Rules 4-7.4(b)(1) and 4-7.8(a) as violative of the First and Fourteenth Amendments to the Constitution. McHenry alleged that he routinely sent targeted solicitations to accident victims or their survivors within 30 days after accidents and that he wished to continue doing so in the future. Went For It, Inc., represented that it wished to contact accident victims or their survivors within 30 days of accidents and to refer potential clients to participating Florida lawyers. In October McHenry was disbarred for reasons unrelated to this suit, Florida Another Florida lawyer, John T. Blakely, was substituted in his stead. The District Court referred the parties' competing summary judgment motions to a Magistrate Judge, who concluded that the Bar had substantial government interests, predicated on a concern for professionalism, both in protecting the personal privacy and tranquility of recent accident victims and their relatives and in ensuring that these individuals do not fall prey to undue influence or Citing the Bar's extensive study, the Magistrate Judge found that the Rules directly serve those interests and sweep no further than reasonably necessary. The Magistrate recommended that the District Court grant the Bar's motion for summary judgment on the ground that the Rules pass constitutional muster. The District Court rejected the Magistrate Judge's report and recommendations and entered summary judgment for the plaintiffs, relying on and subsequent *622 cases. The Eleventh Circuit affirmed on similar grounds, The panel noted, in its conclusion, that it was "disturbed that Bates and its progeny require the decision" that it We granted certiorari, and now reverse. II A Constitutional protection for attorney advertising, and for commercial speech generally, is of recent vintage. Until the mid-1970's, we adhered to the broad rule laid out in that, while the First Amendment guards against government restriction of speech in most contexts, "the Constitution imposes no such restraint on government as respects purely commercial advertising." In 1976, the Court changed course. In Virginia Bd. of we invalidated a state statute barring pharmacists from advertising prescription drug prices. At issue was speech that involved the idea that "`I will sell you the X prescription drug at the Y price.' " Striking the ban as unconstitutional, we rejected the argument that such speech "is so removed from `any exposition of ideas,' and from `truth, science, morality, and arts in general, in its diffusion of liberal sentiments on the administration of Government,' that it lacks all protection." In Virginia Bd., the Court limited its holding to advertising by pharmacists, noting that "[p]hysicians and lawyers do not dispense standardized products; they render professional services of almost infinite variety and nature, with the consequent enhanced possibility for confusion and deception if they were to undertake certain kinds of advertising." One year later, however, the Court applied the Virginia Bd. principles to invalidate a state rule prohibiting lawyers from advertising in newspapers *623 and other media. In Bates v. State Bar of the Court struck a ban on price advertising for what it deemed "routine" legal services: "the uncontested divorce, the simple adoption, the uncontested personal bankruptcy, the change of name, and the like." Expressing confidence that legal advertising would only be practicable for such simple, standardized services, the Court rejected the State's proffered justifications for regulation. Nearly two decades of cases have built upon the foundation laid by Bates. It is now well established that lawyer advertising is commercial speech and, as such, is accorded a measure of First Amendment protection. See, e. g., ; ; In re R. M. J., Such First Amendment protection, of course, is not absolute. We have always been careful to distinguish commercial speech from speech at the First Amendment's core. "`[C]ommercial speech [enjoys] a limited measure of protection, commensurate with its subordinate position in the scale of First Amendment values,' and is subject to `modes of regulation that might be impermissible in the realm of noncommercial expression.' " Board of Trustees of State Univ. of N. quoting We have observed that "`[t]o require a parity of constitutional protection for commercial and noncommercial speech alike could invite dilution, simply by a leveling process, of the force of the Amendment's guarantee with respect to the latter kind of speech.' " quoting at Mindful of these concerns, we engage in "intermediate" scrutiny of restrictions on commercial speech, analyzing them under the framework set forth in Central Hudson Gas & Elec. Under Central Hudson, the government may *624 freely regulate commercial speech that concerns unlawful activity or is misleading. Commercial speech that falls into neither of those categories, like the advertising at issue here, may be regulated if the government satisfies a test consisting of three related prongs: First, the government must assert a substantial interest in support of its regulation; second, the government must demonstrate that the restriction on commercial speech directly and materially advances that interest; and third, the regulation must be "`narrowly drawn.' " B "Unlike rational basis review, the Central Hudson standard does not permit us to supplant the precise interests put forward by the State with other suppositions," (3). The Bar asserts that it has a substantial interest in protecting the privacy and tranquility of personal injury victims and their loved ones against intrusive, unsolicited contact by lawyers. See Brief for Petitioner 8, 25-27; -1044.[1] This interest obviously factors into the Bar's paramount (and repeatedly professed) objective of curbing activities that "negatively affec[t] the administration of justice." The Florida Bar: Petition to Amend the Rules Regulating the Florida Bar— Advertising ; see also Brief for Petitioner 7, 14, 24; *625 Because direct-mail solicitations in the wake of accidents are perceived by the public as intrusive, the Bar argues, the reputation of the legal profession in the eyes of Floridians has suffered commensurately. See Pet. for Cert. 14-15; Brief for Petitioner 28-29. The regulation, then, is an effort to protect the flagging reputations of Florida lawyers by preventing them from engaging in conduct that, the Bar maintains, "`is universally regarded as deplorable and beneath common decency because of its intrusion upon the special vulnerability and private grief of victims or their families.' " Brief for Petitioner 28, quoting In re Anis, 126 N. J. 448, 458, We have little trouble crediting the Bar's interest as substantial. On various occasions we have accepted the proposition that "States have a compelling interest in the practice of professions within their boundaries, and as part of their power to protect the public health, safety, and other valid interests they have broad power to establish standards for licensing practitioners and regulating the practice of professions." ; see also ; Our precedents also leave no room for doubt that "the protection of potential clients' privacy is a substantial state interest." See In other contexts, we have consistently recognized that "[t]he State's interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society." Indeed, we have noted that "a special benefit of the privacy all citizens enjoy within their own walls, which the State may legislate to protect, is an ability to avoid intrusions." Under Central Hudson `s second prong, the State must demonstrate that the challenged regulation "advances the Government's interest `in a direct and material way.' " *626 (5), quoting That burden, we have explained, "`is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.' " 514 U.S., at quoting In the Court invalidated a Florida ban on in-person solicitation by certified public accountants (CPA's). We observed that the State Board of Accountancy had "present[ed] no studies that suggest personal solicitation of prospective business clients by CPA's creates the dangers of fraud, overreaching, or compromised independence that the Board to fear." Moreover, "[t]he record [did] not disclose any anecdotal evidence, either from Florida or another State, that validate[d] the Board's suppositions." In fact, we concluded that the only evidence in the record tended to "contradic[t], rather than strengthe[n], the Board's submissions." Finding nothing in the record to substantiate the State's allegations of harm, we invalidated the regulation. The direct-mail solicitation regulation before us does not suffer from such infirmities. The Bar submitted a 106page summary of its 2-year study of lawyer advertising and solicitation to the District Court. That summary contains data—both statistical and anecdotal—supporting the Bar's contentions that the Florida public views direct-mail solicitations in the immediate wake of accidents as an intrusion on privacy that reflects poorly upon the profession. As of June 1989, lawyers mailed 700,000 direct solicitations in Florida annually, 40% of which were aimed at accident victims or their survivors. Summary of the Record in No. 74,987 (Fla.) on Petition to Amend the Rules Regulating Lawyer Advertising (hereinafter Summary of Record), App. H, p. 2. A survey of Florida adults commissioned by the Bar indicated that Floridians "have negative feelings about *627 those attorneys who use direct mail advertising." Magid Associates, Attitudes & Opinions Toward Direct Mail Advertising by Attorneys (Dec. 1987), Summary of Record, App. C(4), p. 6. Fifty-four percent of the general population surveyed said that contacting persons concerning accidents or similar events is a violation of privacy. A random sampling of persons who received direct-mail advertising from lawyers in 1987 revealed that 45% believed that directmail solicitation is "designed to take advantage of gullible or unstable people"; 34% found such tactics "annoying or irritating"; 26% found it "an invasion of your privacy"; and 24% reported that it "made you angry." Significantly, 27% of direct-mail recipients reported that their regard for the legal profession and for the judicial process as a whole was "lower" as a result of receiving the direct mail. The anecdotal record mustered by the Bar is noteworthy for its breadth and detail. With titles like "Scavenger Lawyers" (The Miami Herald, Sept. 29, 1987) and "Solicitors Out of Bounds" (St. Petersburg Times, Oct. 26, 1987), newspaper editorial pages in Florida have burgeoned with criticism of Florida lawyers who send targeted direct mail to victims shortly after accidents. See Summary of Record, App. B, pp. 1-8 (excerpts from articles); see also Peltz, Legal Advertising—Opening Pandora's Box, The study summary also includes page upon page of excerpts from complaints of direct-mail recipients. For example, a Florida citizen described how he was "`appalled and angered by the brazen attempt' " of a law firm to solicit him by letter shortly after he was injured and his fiancee was killed in an auto accident. Summary of Record, App. I(1), p. 2. Another found it "`despicable and inexcusable' " that a Pensacola lawyer wrote to his mother three days after his father's funeral. Another described how she was "`astounded' " and then "`very angry' " when *628 she received a solicitation following a minor accident. Still another described as "`beyond comprehension' " a letter his nephew's family received the day of the nephew's funeral. One citizen wrote, "`I consider the unsolicited contact from you after my child's accident to be of the rankest form of ambulance chasing and in incredibly poor taste. I cannot begin to express with my limited vocabulary the utter contempt in which I hold you and your kind.' " In light of this showing—which respondents at no time refuted, save by the conclusory assertion that the Rule lacked "any factual basis," Plaintiffs' Motion for Summary Judgment and Supplementary Memorandum of Law in No. 92-370— Civ. (MD Fla.), p. 5—we conclude that the Bar has satisfied the second prong of the Central Hudson test. In dissent, Justice Kennedy complains that we have before us few indications of the sample size or selection procedures employed by Magid Associates (a nationally renowned consulting firm) and no copies of the actual surveys employed. See post, at 640. As stated, we believe the evidence adduced by the Bar is sufficient to meet the standard elaborated in (3). In any event, we do not read our case law to require that empirical data come to us accompanied by a surfeit of background information. Indeed, in other First Amendment contexts, we have permitted litigants to justify speech restrictions by reference to studies and anecdotes pertaining to different locales altogether, see ; (1) or even, in a case applying strict scrutiny, to justify restrictions based solely on history, consensus, and "simple common sense," Nothing in a case in which the State offered no evidence or anecdotes in support of its restriction, requires more. After scouring the record, we are satisfied that the ban on directmail *629 solicitation in the immediate aftermath of accidents, unlike the rule at issue in targets a concrete, nonspeculative harm. In reaching a contrary conclusion, the Court of Appeals determined that this case was governed squarely by Making no mention of the Bar's study, the court concluded that "`a targeted letter [does not] invade the recipient's privacy any more than does a substantively identical letter mailed at large. The invasion, if any, occurs when the lawyer discovers the recipient's legal affairs, not when he confronts the recipient with the discovery.' " quoting In many cases, the Court of Appeals explained, "this invasion of privacy will involve no more than reading the newspaper." While some of `s language might be read to support the Court of Appeals' interpretation, differs in several fundamental respects from the case before us. First and foremost, `s treatment of privacy was casual. Contrary to the dissent's suggestions, post, at -638, the State in did not seek to justify its regulation as a measure undertaken to prevent lawyers' invasions of privacy interests. See generally Brief for Respondent in O. T. 1987, No. 87-16. Rather, the State focused exclusively on the special dangers of overreaching inhering in targeted solicitations. Second, in contrast to this case, dealt with a broad ban on all direct-mail solicitations, whatever the time frame and whoever the recipient. Finally, the State in assembled no evidence attempting to demonstrate any actual harm caused by targeted direct mail. The Court rejected the State's effort to justify a prophylactic ban on the basis of blanket, untested assertions of undue influence and Because the State did not make a privacy-based argument at all, its empirical showing on that issue was similarly infirm. *630 We find the Court's perfunctory treatment of privacy in to be of little utility in assessing this ban on targeted solicitation of victims in the immediate aftermath of accidents. While it is undoubtedly true that many people find the image of lawyers sifting through accident and police reports in pursuit of prospective clients unpalatable and invasive, this case targets a different kind of intrusion. The Bar has argued, and the record reflects, that a principal purpose of the ban is "protecting the personal privacy and tranquility of [Florida's] citizens from crass commercial intrusion by attorneys upon their personal grief in times of trauma." Brief for Petitioner 8; cf. Summary of Record, App. I(1) (citizen commentary describing outrage at lawyers' timing in sending solicitation letters). The intrusion targeted by the Bar's regulation stems not from the fact that a lawyer has learned about an accident or disaster (as the Court of Appeals notes, in many instances a lawyer need only read the newspaper to glean this information), but from the lawyer's confrontation of victims or relatives with such information, while wounds are still open, in order to solicit their business. In this respect, an untargeted letter mailed to society at large is different in kind from a targeted solicitation; the untargeted letter involves no willful or knowing affront to or invasion of the tranquility of bereaved or injured individuals and simply does not cause the same kind of reputational harm to the profession unearthed by the Bar's study. Nor do we find dispositive of the issue, despite any superficial resemblance. In Bolger, we rejected the Federal Government's paternalistic effort to ban potentially "offensive" and "intrusive" direct-mail advertisements for contraceptives. Minimizing the Government's allegations of harm, we reasoned that "[r]ecipients of objectionable mailings may `"effectively avoid further bombardment of their sensibilities simply by averting their eyes."` " 2, quoting Con- *631 solidated Edison Co. of N. 2 in turn quoting We found that the "`short, though regular, journey from mail box to trash can is an acceptable burden, at least so far as the Constitution is concerned.' " 463 U.S., 2 quoting (SDNY), summarily aff'd, Concluding that citizens have at their disposal ample means of averting any substantial injury inhering in the delivery of objectionable contraceptive material, we deemed the State's intercession unnecessary and unduly restrictive. Here, in contrast, the harm targeted by the Bar cannot be eliminated by a brief journey to the trash can. The purpose of the 30-day targeted direct-mail ban is to forestall the outrage and irritation with the state-licensed legal profession that the practice of direct solicitation only days after accidents has engendered. The Bar is concerned not with citizens' "offense" in the abstract, see post, at 638-639, but with the demonstrable detrimental effects that such "offense" has on the profession it regulates. See Brief for Petitioner 7, 14, 24, 28.[2] Moreover, the harm posited by the Bar is as much a function of simple receipt of targeted solicitations within days of accidents as it is a function of the letters' contents. Throwing the letter away shortly after opening it may minimize the latter intrusion, but it does little to combat the former. We see no basis in Bolger, nor in the other, similar cases cited by the dissent, post, at 638-639, for dismissing the Bar's assertions of harm, particularly *632 given the unrefuted empirical and anecdotal basis for the Bar's conclusions. Passing to Central Hudson `s third prong, we examine the relationship between the Bar's interests and the means chosen to serve them. See Board of Trustees of State Univ. of N. With respect to this prong, the differences between commercial speech and noncommercial speech are manifest. In we made clear that the "least restrictive means" test has no role in the commercial speech context. "What our decisions require," instead, "is a `fit' between the legislature's ends and the means chosen to accomplish those ends,' a fit that is not necessarily perfect, but reasonable; that represents not necessarily the single best disposition but one whose scope is `in proportion to the interest served,' that employs not necessarily the least restrictive means but a means narrowly tailored to achieve the desired objective." Of course, we do not equate this test with the less rigorous obstacles of rational basis review; in (3), for example, we observed that the existence of "numerous and obvious less-burdensome alternatives to the restriction on commercial speech is certainly a relevant consideration in determining whether the `fit' between ends and means is reasonable." Respondents levy a great deal of criticism, echoed in the dissent, post, at 642-644, at the scope of the Bar's restriction on targeted mail. "[B]y prohibiting written communications to all people, whatever their state of mind," respondents charge, the Rule "keeps useful information from those accident victims who are ready, willing and able to utilize a lawyer's advice." Brief for Respondents 14. This criticism may be parsed into two components. First, the Rule does not distinguish between victims in terms of the severity of their injuries. According to respondents, the Rule is unconstitutionally overinclusive insofar as it bans targeted mailings *633 even to citizens whose injuries or grief are relatively minor. Second, the Rule may prevent citizens from learning about their legal options, particularly at a time when other actors—opposing counsel and insurance adjusters—may be clamoring for victims' attentions. Any benefit arising from the Bar's regulation, respondents implicitly contend, is outweighed by these costs. We are not persuaded by respondents' allegations of constitutional infirmity. We find little deficiency in the ban's failure to distinguish among injured Floridians by the severity of their pain or the intensity of their grief. Indeed, it is hard to imagine the contours of a regulation that might satisfy respondents on this score. Rather than drawing difficult lines on the basis that some injuries are "severe" and some situations appropriate (and others, presumably, inappropriate) for grief, anger, or emotion, the Bar has crafted a ban applicable to all postaccident or disaster solicitations for a brief 30-day period. Unlike respondents, we do not see "numerous and obvious less-burdensome alternatives" to Florida's short temporal ban. at The Bar's rule is reasonably well tailored to its stated objective of eliminating targeted mailings whose type and timing are a source of distress to Floridians, distress that has caused many of them to lose respect for the legal profession. Respondents' second point would have force if the Bar's Rule were not limited to a brief period and if there were not many other ways for injured Floridians to learn about the availability of legal representation during that time. Our lawyer advertising cases have afforded lawyers a great deal of leeway to devise innovative ways to attract new business. Florida permits lawyers to advertise on prime-time television and radio as well as in newspapers and other media. They may rent space on billboards. They may send untargeted letters to the general population, or to discrete segments thereof. There are, of course, pages upon pages devoted *634 to lawyers in the Yellow Pages of Florida telephone directories. These listings are organized alphabetically and by area of specialty. See generally Rule 4-7.2(a), Rules Regulating The Florida Bar ("[A] lawyer may advertise services through public media, such as a telephone directory, legal directory, newspaper or other periodical, billboards and other signs, radio, television, and recorded messages the public may access by dialing a telephone number, or through written communication not involving solicitation as defined in rule 4-7.4"); The Florida Bar: Petition to Amend the Rules Regulating the Florida Bar—Advertising These ample alternative channels for receipt of information about the availability of legal representation during the 30-day period following accidents may explain why, despite the ample evidence, testimony, and commentary submitted by those favoring (as well as opposing) unrestricted direct-mail solicitation, respondents have not pointed to—and we have not independently found—a single example of an individual case in which immediate solicitation helped to avoid, or failure to solicit within 30 days brought about, the harms that concern the dissent, see post, at 643. In fact, the record contains considerable empirical survey information suggesting that Floridians have little difficulty finding a lawyer when they need one. See, e. g., Summary of Record, App. C(4), p. 7; App. C(5), p. 8. Finding no basis to question the commonsense conclusion that the many alternative channels for communicating necessary information about attorneys are sufficient, we see no defect in Florida's regulation. III Speech by professionals obviously has many dimensions. There are circumstances in which we will accord speech by attorneys on public issues and matters of legal representation the strongest protection our Constitution has to offer. See, e. g., (1); In re Primus, This case, however, *635 concerns pure commercial advertising, for which we have always reserved a lesser degree of protection under the First Amendment. Particularly because the standards and conduct of state-licensed lawyers have traditionally been subject to extensive regulation by the States, it is all the more appropriate that we limit our scrutiny of state regulations to a level commensurate with the "`subordinate position' " of commercial speech in the scale of First Amendment values. 492 U. S., at quoting 436 U. S., at We believe that the Bar's 30-day restriction on targeted direct-mail solicitation of accident victims and their relatives withstands scrutiny under the three-pronged Central Hudson test that we have devised for this context. The Bar has substantial interest both in protecting injured Floridians from invasive conduct by lawyers and in preventing the erosion of confidence in the profession that such repeated invasions have engendered. The Bar's proffered study, unrebutted by respondents below, provides evidence indicating that the harms it targets are far from illusory. The palliative devised by the Bar to address these harms is narrow both in scope and in duration. The Constitution, in our view, requires nothing more. The judgment of the Court of Appeals, accordingly, is Reversed.

Justice Kennedy

dissenting

Florida Bar v. Went for It, Inc.

1995-06-21

https://www.courtlistener.com/opinion/117963/florida-bar-v-went-for-it-inc/

https://www.courtlistener.com/api/rest/v3/clusters/117963/

1994-086

Attorneys who communicate their willingness to assist potential clients are engaged in speech protected by the First and Fourteenth Amendments. That principle has been understood since Bates v. State Bar of Ariz., 433 U.S. 350 (1977). The Court today undercuts this guarantee in an important class of cases and unsettles leading First Amendment precedents, at the expense of those victims most in need of legal assistance. With all respect for the Court, in *636 my view its solicitude for the privacy of victims and its concern for our profession are misplaced and self-defeating, even upon the Court's own premises. I take it to be uncontroverted that when an accident results in death or injury, it is often urgent at once to investigate the occurrence, identify witnesses, and preserve evidence. Vital interests in speech and expression are, therefore, at stake when by law an attorney cannot direct a letter to the victim or the family explaining this simple fact and offering competent legal assistance. Meanwhile, represented and better informed parties, or parties who have been solicited in ways more sophisticated and indirect, may be at work. Indeed, these parties, either themselves or by their attorneys, investigators, and adjusters, are free to contact the unrepresented persons to gather evidence or offer settlement. This scheme makes little sense. As is often true when the law makes little sense, it is not first principles but their interpretation and application that have gone awry. Although I agree with the Court that the case can be resolved by following the three-part inquiry we have identified to assess restrictions on commercial speech, Central Hudson Gas & Elec. Corp. v. Public Serv. Comm'n of N. Y., 447 U.S. 557, 566 (1980), a preliminary observation is in order. Speech has the capacity to convey complex substance, yielding various insights and interpretations depending upon the identity of the listener or the reader and the context of its transmission. It would oversimplify to say that what we consider here is commercial speech and nothing more, for in many instances the banned communications may be vital to the recipients' right to petition the courts for redress of grievances. The complex nature of expression is one reason why even so-called commercial speech has become an essential part of the public discourse the First Amendment secures. See, e. g., Edenfield v. Fane, 507 U.S. 761, 766-767 (1993). If our commercial speech rules are to control this case, then, it is imperative to apply them with exacting care *637 and fidelity to our precedents, for what is at stake is the suppression of information and knowledge that transcends the financial self-interests of the speaker. I As the Court notes, the first of the Central Hudson factors to be considered is whether the interest the State pursues in enacting the speech restriction is a substantial one. Ante, at 624. The State says two different interests meet this standard. The first is the interest "in protecting the personal privacy and tranquility" of the victim and his or her family. Brief for Petitioner 8. As the Court notes, that interest has recognition in our decisions as a general matter; but it does not follow that the privacy interest in the cases the majority cites is applicable here. The problem the Court confronts, and cannot overcome, is our recent decision in Shapero v. Kentucky Bar Assn., 486 U.S. 466 (1988). In assessing the importance of the interest in that solicitation case, we made an explicit distinction between direct, in-person solicitations and direct-mail solicitations. Shapero, like this case, involved a direct-mail solicitation, and there the State recited its fears of "overreaching and undue influence." Id., at 475. We found, however, no such dangers presented by direct-mail advertising. We reasoned that "[a] letter, like a printed advertisement (but unlike a lawyer), can readily be put in a drawer to be considered later, ignored, or discarded." Id., at 475-476. We pointed out that "[t]he relevant inquiry is not whether there exist potential clients whose `condition' makes them susceptible to undue influence, but whether the mode of communication poses a serious danger that lawyers will exploit any such susceptibility." Id., at 474. In assessing the substantiality of the evils to be prevented, we concluded that "the mode of communication makes all the difference." Id., at 475. The direct mail in Shapero did not present the justification for regulation of speech presented in Ohralik v. Ohio State Bar Assn., 436 U.S. 447 (1978) (a *638 lawyer's direct, in-person solicitation of personal injury business may be prohibited by the State). See also Edenfield, supra (an accountant's direct, in-person solicitation of accounting business did implicate a privacy interest, though not one permitting state suppression of speech when other factors were considered). To avoid the controlling effect of Shapero in the case before us, the Court seeks to declare that a different privacy interest is implicated. As it sees the matter, the substantial concern is that victims or their families will be offended by receiving a solicitation during their grief and trauma. But we do not allow restrictions on speech to be justified on the ground that the expression might offend the listener. On the contrary, we have said that these "are classically not justifications validating the suppression of expression protected by the First Amendment." Carey v. Population Services Int'l, 431 U.S. 678, 701 (1977). And in Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985), where we struck down a ban on attorney advertising, we held that "the mere possibility that some members of the population might find advertising . . . offensive cannot justify suppressing it. The same must hold true for advertising that some members of the bar might find beneath their dignity." Id., at 648. We have applied this principle to direct-mail cases as well as with respect to general advertising, noting that the right to use the mails is protected by the First Amendment. See Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 76 (1983) (Rehnquist, J., concurring) (citing Blount v. Rizzi, 400 U.S. 410 (1971)). In Bolger, we held that a statute designed to "shiel[d] recipients of mail from materials that they are likely to find offensive" furthered an interest of "little weight," noting that "we have consistently held that the fact that protected speech may be offensive to some does not justify its suppression." 463 U.S., at 71 (citing Carey, supra, at 701). It is only where an audience is captive that we will *639 assure its protection from some offensive speech. See Consolidated Edison Co. of N. Y. v. Public Serv. Comm'n of N. Y., 447 U.S. 530, 542 (1980). Outside that context, "we have never held that the Government itself can shut off the flow of mailings to protect those recipients who might potentially be offended." Bolger, supra, at 72. The occupants of a household receiving mailings are not a captive audience, 463 U.S., at 72, and the asserted interest in preventing their offense should be no more controlling here than in our prior cases. All the recipient of objectional mailings need do is to take "the `short, though regular, journey from mail box to trash can.' " Ibid. (citation omitted). As we have observed, this is "an acceptable burden, at least so far as the Constitution is concerned." Ibid. If these cases forbidding restrictions on speech that might be offensive are to be overruled, the Court should say so. In the face of these difficulties of logic and precedent, the State and the opinion of the Court turn to a second interest: protecting the reputation and dignity of the legal profession. The argument is, it seems fair to say, that all are demeaned by the crass behavior of a few. The argument takes a further step in the amicus brief filed by the Association of Trial Lawyers of America. There it is said that disrespect for the profession from this sort of solicitation (but presumably from no other sort of solicitation) results in lower jury verdicts. In a sense, of course, these arguments are circular. While disrespect will arise from an unethical or improper practice, the majority begs a most critical question by assuming that direct-mail solicitations constitute such a practice. The fact is, however, that direct solicitation may serve vital purposes and promote the administration of justice, and to the extent the bar seeks to protect lawyers' reputations by preventing them from engaging in speech some deem offensive, the State is doing nothing more (as amicus the Association of Trial Lawyers of America is at least candid enough to admit) than manipulating the public's opinion by suppressing speech *640 that informs us how the legal system works. The disrespect argument thus proceeds from the very assumption it tries to prove, which is to say that solicitations within 30 days serve no legitimate purpose. This, of course, is censorship pure and simple; and censorship is antithetical to the first principles of free expression. II Even were the interests asserted substantial, the regulation here fails the second part of the Central Hudson test, which requires that the dangers the State seeks to eliminate be real and that a speech restriction or ban advance that asserted state interest in a direct and material way. Edenfield, 507 U. S., at 771. The burden of demonstrating the reality of the asserted harm rests on the State. Ibid. Slight evidence in this regard does not mean there is sufficient evidence to support the claims. Here, what the State has offered falls well short of demonstrating that the harms it is trying to redress are real, let alone that the regulation directly and materially advances the State's interests. The parties and the Court have used the term "Summary of Record" to describe a document prepared by the Florida Bar (Bar), one of the adverse parties, and submitted to the District Court in this case. See ante, at 626. This document includes no actual surveys, few indications of sample size or selection procedures, no explanations of methodology, and no discussion of excluded results. There is no description of the statistical universe or scientific framework that permits any productive use of the information the so-called Summary of Record contains. The majority describes this anecdotal matter as "noteworthy for its breadth and detail," ante, at 627, but when examined, it is noteworthy for its incompetence. The selective synopses of unvalidated studies deal, for the most part, with television advertising and phone book listings, and not direct-mail solicitations. Although there may be issues common to various kinds of attorney advertising and solicitation, it is not clear what would follow from *641 that limited premise, unless the Court means by its decision to call into question all forms of attorney advertising. The most generous reading of this document permits identification of 34 pages on which direct-mail solicitation is arguably discussed. Of these, only two are even a synopsis of a study of the attitudes of Floridians towards such solicitations. The bulk of the remaining pages include comments by lawyers about direct mail (some of them favorable), excerpts from citizen complaints about such solicitation, and a few excerpts from newspaper articles on the topic. Our cases require something more than a few pages of self-serving and unsupported statements by the State to demonstrate that a regulation directly and materially advances the elimination of a real harm when the State seeks to suppress truthful and nondeceptive speech. See, e. g., Edenfield, 507 U. S., at 771-772. It is telling that the essential thrust of all the material adduced to justify the State's interest is devoted to the reputational concerns of the Bar. It is not at all clear that this regulation advances the interest of protecting persons who are suffering trauma and grief, and we are cited to no material in the record for that claim. Indeed, when asked at oral argument what a "typical injured plaintiff get[s] in the mail," the Bar's lawyer replied: "That's not in the record. . . and I don't know the answer to that question." Tr. of Oral Arg. 25. Having declared that the privacy interest is one both substantial and served by the regulation, the Court ought not to be excused from justifying its conclusion. III The insufficiency of the regulation to advance the State's interest is reinforced by the third inquiry necessary in this analysis. Were it appropriate to reach the third part of the Central Hudson test, it would be clear that the relationship between the Bar's interests and the means chosen to serve them is not a reasonable fit. The Bar's rule creates a flat *642 ban that prohibits far more speech than necessary to serve the purported state interest. Even assuming that interest were legitimate, there is a wild disproportion between the harm supposed and the speech ban enforced. It is a disproportion the Court does not bother to discuss, but our speech jurisprudence requires that it do so. Central Hudson, 447 U. S., at 569-571; Board of Trustees of State Univ. of N. Y. v. Fox, 492 U.S. 469, 480 (1989). To begin with, the ban applies with respect to all accidental injuries, whatever their gravity. The Court's purported justification for the excess of regulation in this respect is the difficulty of drawing lines between severe and less serious injuries, see ante, at 633, but making such distinctions is not important in this analysis. Even were it significant, the Court's assertion is unconvincing. After all, the criminal law routinely distinguishes degrees of bodily harm, see, e. g., United States Sentencing Commission, Guidelines Manual § 1B1.1, comment., n. 1(b), (h), (j) (Nov. 1994), and if that delineation is permissible and workable in the criminal context, it should not be "hard to imagine the contours of a regulation" that satisfies the reasonable fit requirement. Ante, at 633. There is, moreover, simply no justification for assuming that in all or most cases an attorney's advice would be unwelcome or unnecessary when the survivors or the victim must at once begin assessing their legal and financial position in a rational manner. With regard to lesser injuries, there is little chance that for any period, much less 30 days, the victims will become distraught upon hearing from an attorney. It is, in fact, more likely a real risk that some victims might think no attorney will be interested enough to help them. It is at this precise time that sound legal advice may be necessary and most urgent. Even as to more serious injuries, the State's argument fails, since it must be conceded that prompt legal representation is essential where death or injury results from accidents. *643 The only seeming justification for the State's restriction is the one the Court itself offers, which is that attorneys can and do resort to other ways of communicating important legal information to potential clients. Quite aside from the latent protectionism for the established bar that the argument discloses, it fails for the more fundamental reason that it concedes the necessity for the very representation the attorneys solicit and the State seeks to ban. The accident victims who are prejudiced to vindicate the State's purported desire for more dignity in the legal profession will be the very persons who most need legal advice, for they are the victims who, because they lack education, linguistic ability, or familiarity with the legal system, are unable to seek out legal services. Cf. Trainmen v. Virginia ex rel. Virginia State Bar, 377 U.S. 1, 3-4 (1964). The reasonableness of the State's chosen methods for redressing perceived evils can be evaluated, in part, by a commonsense consideration of other possible means of regulation that have not been tried. Here, the Court neglects the fact that this problem is largely self-policing: Potential clients will not hire lawyers who offend them. And even if a person enters into a contract with an attorney and later regrets it, Florida, like some other States, allows clients to rescind certain contracts with attorneys within a stated time after they are executed. See, e. g., Rules Regulating the Florida Bar, Rule 4-1.5 (Statement of Client's Rights) (effective Jan. 1, 1993). The State's restriction deprives accident victims of information which may be critical to their right to make a claim for compensation for injuries. The telephone book and general advertisements may serve this purpose in part; but the direct solicitation ban will fall on those who most need legal representation: for those with minor injuries, the victims too ill informed to know an attorney may be interested in their cases; for those with serious injuries, the victims too ill informed to know that time is of the essence if counsel is to assemble evidence and warn them not to enter into settlement *644 negotiations or evidentiary discussions with investigators for opposing parties. One survey reports that over a recent 5-year period, 68% of the American population consulted a lawyer. N. Y. Times, June 11, 1995, section 3, p. 1, col. 1. The use of modern communication methods in a timely way is essential if clients who make up this vast demand are to be advised and informed of all of their choices and rights in selecting an attorney. The very fact that some 280,000 direct-mail solicitations are sent to accident victims and their survivors in Florida each year is some indication of the efficacy of this device. Nothing in the Court's opinion demonstrates that these efforts do not serve some beneficial role. A solicitation letter is not a contract. Nothing in the record shows that these communications do not at the least serve the purpose of informing the prospective client that he or she has a number of different attorneys from whom to choose, so that the decision to select counsel, after an interview with one or more interested attorneys, can be deliberate and informed. And if these communications reveal the social costs of the tort system as a whole, then efforts can be directed to reforming the operation of that system, not to suppressing information about how the system works. The Court's approach, however, does not seem to be the proper way to begin elevating the honor of the profession. IV It is most ironic that, for the first time since Bates v. State Bar of Arizona, the Court now orders a major retreat from the constitutional guarantees for commercial speech in order to shield its own profession from public criticism. Obscuring the financial aspect of the legal profession from public discussion through direct-mail solicitation, at the expense of the least sophisticated members of society, is not a laudable constitutional goal. There is no authority for the proposition that the Constitution permits the State to promote the public image of the legal profession by suppressing information *645 about the profession's business aspects. If public respect for the profession erodes because solicitation distorts the idea of the law as most lawyers see it, it must be remembered that real progress begins with more rational speech, not less. I agree that if this amounts to mere "sermonizing," see Shapero, 486 U. S., at 490 (O'Connor, J.,dissenting), the attempt may be futile. The guiding principle, however, is that full and rational discussion furthers sound regulation and necessary reform. The image of the profession cannot be enhanced without improving the substance of its practice. The objective of the profession is to ensure that "the ethical standards of lawyers are linked to the service and protection of clients." Ohralik, 436 U. S., at 461. Today's opinion is a serious departure, not only from our prior decisions involving attorney advertising, but also from the principles that govern the transmission of commercial speech. The Court's opinion reflects a new-found and illegitimate confidence that it, along with the Supreme Court of Florida, knows what is best for the Bar and its clients. Self-assurance has always been the hallmark of a censor. That is why under the First Amendment the public, not the State, has the right and the power to decide what ideas and information are deserving of their adherence. "[T]he general rule is that the speaker and the audience, not the government, assess the value of the information presented." Edenfield, 507 U. S., at 767. By validating Florida's rule, today's majority is complicit in the Bar's censorship. For these reasons, I dissent from the opinion of the Court and from its judgment.

Attorneys who communicate their willingness to assist potential clients are engaged in speech protected by the First and Fourteenth Amendments. That principle has been understood since The Court today undercuts this guarantee in an important class of cases and unsettles leading First Amendment precedents, at the expense of those victims most in need of legal assistance. With all respect for the Court, in *636 my view its solicitude for the privacy of victims and its concern for our profession are misplaced and self-defeating, even upon the Court's own premises. I take it to be uncontroverted that when an accident results in death or injury, it is often urgent at once to investigate the occurrence, identify witnesses, and preserve evidence. Vital interests in speech and expression are, therefore, at stake when by law an attorney cannot direct a letter to the victim or the family explaining this simple fact and offering competent legal assistance. Meanwhile, represented and better informed parties, or parties who have been solicited in ways more sophisticated and indirect, may be at work. Indeed, these parties, either themselves or by their attorneys, investigators, and adjusters, are free to contact the unrepresented persons to gather evidence or offer settlement. This scheme makes little sense. As is often true when the law makes little sense, it is not first principles but their interpretation and application that have gone awry. Although I agree with the Court that the case can be resolved by following the three-part inquiry we have identified to assess restrictions on commercial speech, Hudson Gas & Elec. a preliminary observation is in order. Speech has the capacity to convey complex substance, yielding various insights and interpretations depending upon the identity of the listener or the reader and the context of its transmission. It would oversimplify to say that what we consider here is commercial speech and nothing more, for in many instances the banned communications may be vital to the recipients' right to petition the courts for redress of grievances. The complex nature of expression is one reason why even so-called commercial speech has become an essential part of the public discourse the First Amendment secures. See, e. g., If our commercial speech rules are to control this case, then, it is imperative to apply them with exacting care *637 and fidelity to our precedents, for what is at stake is the suppression of information and knowledge that transcends the financial self-interests of the speaker. I As the Court notes, the first of the Hudson factors to be considered is whether the interest the State pursues in enacting the speech restriction is a substantial one. Ante, at 624. The State says two different interests meet this standard. The first is the interest "in protecting the personal privacy and tranquility" of the victim and his or her family. Brief for Petitioner 8. As the Court notes, that interest has recognition in our decisions as a general matter; but it does not follow that the privacy interest in the cases the majority cites is applicable here. The problem the Court confronts, and cannot overcome, is our recent decision in In assessing the importance of the interest in that solicitation case, we made an explicit distinction between direct, in-person solicitations and direct-mail solicitations. like this case, involved a direct-mail solicitation, and there the State recited its fears of "overreaching and undue influence." We found, however, no such dangers presented by direct-mail advertising. We reasoned that "[a] letter, like a printed advertisement (but unlike a lawyer), can readily be put in a drawer to be considered later, ignored, or discarded." -4. We pointed out that "[t]he relevant inquiry is not whether there exist potential clients whose `condition' makes them susceptible to undue influence, but whether the mode of communication poses a serious danger that lawyers will exploit any such susceptibility." In assessing the substantiality of the evils to be prevented, we concluded that "the mode of communication makes all the difference." The direct mail in did not present the justification for regulation of speech presented in See also To avoid the controlling effect of in the case before us, the Court seeks to declare that a different privacy interest is implicated. As it sees the matter, the substantial concern is that victims or their families will be offended by receiving a solicitation during their grief and trauma. But we do not allow restrictions on speech to be justified on the ground that the expression might offend the listener. On the contrary, we have said that these "are classically not justifications validating the suppression of expression protected by the First Amendment." And in where we struck down a ban on attorney advertising, we held that "the mere possibility that some members of the population might find advertising offensive cannot justify suppressing it. The same must hold true for advertising that some members of the bar might find beneath their dignity." We have applied this principle to direct-mail cases as well as with respect to general advertising, noting that the right to use the mails is protected by the First Amendment. See ). In we held that a statute designed to "shiel[d] recipients of mail from materials that they are likely to find offensive" furthered an interest of "little weight," noting that "we have consistently held that the fact that protected speech may be offensive to some does not justify its suppression." (citing at ). It is only where an is captive that we will *639 assure its protection from some offensive speech. See Consolidated Edison Co. of N. Outside that context, "we have never held that the Government itself can shut off the flow of mailings to protect those recipients who might potentially be offended." The occupants of a household receiving mailings are not a captive 463 U.S., and the asserted interest in preventing their offense should be no more controlling here than in our prior cases. All the recipient of objectional mailings need do is to take "the `short, though regular, journey from mail box to trash can.' " As we have observed, this is "an acceptable burden, at least so far as the Constitution is concerned." If these cases forbidding restrictions on speech that might be offensive are to be overruled, the Court should say so. In the face of these difficulties of logic and precedent, the State and the opinion of the Court turn to a second interest: protecting the reputation and dignity of the legal profession. The argument is, it seems fair to say, that all are demeaned by the crass behavior of a few. The argument takes a further step in the amicus brief filed by the Association of Trial Lawyers of America. There it is said that disrespect for the profession from this sort of solicitation (but presumably from no other sort of solicitation) results in lower jury verdicts. In a sense, of course, these arguments are circular. While disrespect will arise from an unethical or improper practice, the majority begs a most critical question by assuming that direct-mail solicitations constitute such a practice. The fact is, however, that direct solicitation may serve vital purposes and promote the administration of justice, and to the extent the bar seeks to protect lawyers' reputations by preventing them from engaging in speech some deem offensive, the State is doing nothing more (as amicus the Association of Trial Lawyers of America is at least candid enough to admit) than manipulating the public's opinion by suppressing speech *640 that informs us how the legal system works. The disrespect argument thus proceeds from the very assumption it tries to prove, which is to say that solicitations within 30 days serve no legitimate purpose. This, of course, is censorship pure and simple; and censorship is antithetical to the first principles of free expression. II Even were the interests asserted substantial, the regulation here fails the second part of the Hudson test, which requires that the dangers the State seeks to eliminate be real and that a speech restriction or ban advance that asserted state interest in a direct and material way. The burden of demonstrating the reality of the asserted harm rests on the State. Slight evidence in this regard does not mean there is sufficient evidence to support the claims. Here, what the State has offered falls well short of demonstrating that the harms it is trying to redress are real, let alone that the regulation directly and materially advances the State's interests. The parties and the Court have used the term "Summary of Record" to describe a document prepared by the Florida Bar (Bar), one of the adverse parties, and submitted to the District Court in this case. See ante, at 626. This document includes no actual surveys, few indications of sample size or selection procedures, no explanations of methodology, and no discussion of excluded results. There is no description of the statistical universe or scientific framework that permits any productive use of the information the so-called Summary of Record contains. The majority describes this anecdotal matter as "noteworthy for its breadth and detail," ante, at 627, but when examined, it is noteworthy for its incompetence. The selective synopses of unvalidated studies deal, for the most part, with television advertising and phone book listings, and not direct-mail solicitations. Although there may be issues common to various kinds of attorney advertising and solicitation, it is not clear what would follow from *641 that limited premise, unless the Court means by its decision to call into question all forms of attorney advertising. The most generous reading of this document permits identification of 34 pages on which direct-mail solicitation is arguably discussed. Of these, only two are even a synopsis of a study of the attitudes of Floridians towards such solicitations. The bulk of the remaining pages include comments by lawyers about direct mail (some of them favorable), excerpts from citizen complaints about such solicitation, and a few excerpts from newspaper articles on the topic. Our cases require something more than a few pages of self-serving and unsupported statements by the State to demonstrate that a regulation directly and materially advances the elimination of a real harm when the State seeks to suppress truthful and nondeceptive speech. See, e. g., -772. It is telling that the essential thrust of all the material adduced to justify the State's interest is devoted to the reputational concerns of the Bar. It is not at all clear that this regulation advances the interest of protecting persons who are suffering trauma and grief, and we are cited to no material in the record for that claim. Indeed, when asked at oral argument what a "typical injured plaintiff get[s] in the mail," the Bar's lawyer replied: "That's not in the record. and I don't know the answer to that question." Tr. of Oral Arg. 25. Having declared that the privacy interest is one both substantial and served by the regulation, the Court ought not to be excused from justifying its conclusion. III The insufficiency of the regulation to advance the State's interest is reinforced by the third inquiry necessary in this analysis. Were it appropriate to reach the third part of the Hudson test, it would be clear that the relationship between the Bar's interests and the means chosen to serve them is not a reasonable fit. The Bar's rule creates a flat *642 ban that prohibits far more speech than necessary to serve the purported state interest. Even assuming that interest were legitimate, there is a wild disproportion between the harm supposed and the speech ban enforced. It is a disproportion the Court does not bother to discuss, but our speech jurisprudence requires that it do so. Hudson, -571; Board of Trustees of State Univ. of N. To begin with, the ban applies with respect to all accidental injuries, whatever their gravity. The Court's purported justification for the excess of regulation in this respect is the difficulty of drawing lines between severe and less serious injuries, see ante, at 633, but making such distinctions is not important in this analysis. Even were it significant, the Court's assertion is unconvincing. After all, the criminal law routinely distinguishes degrees of bodily harm, see, e. g., United States Sentencing Commission, Guidelines Manual 1B1.1, comment., n. 1(b), (h), (j) (Nov. 1994), and if that delineation is permissible and workable in the criminal context, it should not be "hard to imagine the contours of a regulation" that satisfies the reasonable fit requirement. Ante, at 633. There is, moreover, simply no justification for assuming that in all or most cases an attorney's advice would be unwelcome or unnecessary when the survivors or the victim must at once begin assessing their legal and financial position in a rational manner. With regard to lesser injuries, there is little chance that for any period, much less 30 days, the victims will become distraught upon hearing from an attorney. It is, in fact, more likely a real risk that some victims might think no attorney will be interested enough to help them. It is at this precise time that sound legal advice may be necessary and most urgent. Even as to more serious injuries, the State's argument fails, since it must be conceded that prompt legal representation is essential where death or injury results from accidents. *643 The only seeming justification for the State's restriction is the one the Court itself offers, which is that attorneys can and do resort to other ways of communicating important legal information to potential clients. Quite aside from the latent protectionism for the established bar that the argument discloses, it fails for the more fundamental reason that it concedes the necessity for the very representation the attorneys solicit and the State seeks to ban. The accident victims who are prejudiced to vindicate the State's purported desire for more dignity in the legal profession will be the very persons who most need legal advice, for they are the victims who, because they lack education, linguistic ability, or familiarity with the legal system, are unable to seek out legal services. Cf. The reasonableness of the State's chosen methods for redressing perceived evils can be evaluated, in part, by a commonsense consideration of other possible means of regulation that have not been tried. Here, the Court neglects the fact that this problem is largely self-policing: Potential clients will not hire lawyers who offend them. And even if a person enters into a contract with an attorney and later regrets it, Florida, like some other States, allows clients to rescind certain contracts with attorneys within a stated time after they are executed. See, e. g., Rules Regulating the Florida Bar, Rule 4-1.5 (Statement of Client's Rights) The State's restriction deprives accident victims of information which may be critical to their right to make a claim for compensation for injuries. The telephone book and general advertisements may serve this purpose in part; but the direct solicitation ban will fall on those who most need legal representation: for those with minor injuries, the victims too ill informed to know an attorney may be interested in their cases; for those with serious injuries, the victims too ill informed to know that time is of the essence if counsel is to assemble evidence and warn them not to enter into settlement *644 negotiations or evidentiary discussions with investigators for opposing parties. One survey reports that over a recent 5-year period, 68% of the American population consulted a lawyer. N. Y. Times, June 11, 1995, section 3, p. 1, col. 1. The use of modern communication methods in a timely way is essential if clients who make up this vast demand are to be advised and informed of all of their choices and rights in selecting an attorney. The very fact that some 280,000 direct-mail solicitations are sent to accident victims and their survivors in Florida each year is some indication of the efficacy of this device. Nothing in the Court's opinion demonstrates that these efforts do not serve some beneficial role. A solicitation letter is not a contract. Nothing in the record shows that these communications do not at the least serve the purpose of informing the prospective client that he or she has a number of different attorneys from whom to choose, so that the decision to select counsel, after an interview with one or more interested attorneys, can be deliberate and informed. And if these communications reveal the social costs of the tort system as a whole, then efforts can be directed to reforming the operation of that system, not to suppressing information about how the system works. The Court's approach, however, does not seem to be the proper way to begin elevating the honor of the profession. IV It is most ironic that, for the first time since Bates v. State Bar of Arizona, the Court now orders a major retreat from the constitutional guarantees for commercial speech in order to shield its own profession from public criticism. Obscuring the financial aspect of the legal profession from public discussion through direct-mail solicitation, at the expense of the least sophisticated members of society, is not a laudable constitutional goal. There is no authority for the proposition that the Constitution permits the State to promote the public image of the legal profession by suppressing information *645 about the profession's business aspects. If public respect for the profession erodes because solicitation distorts the idea of the law as most lawyers see it, it must be remembered that real progress begins with more rational speech, not less. I agree that if this amounts to mere "sermonizing," see the attempt may be futile. The guiding principle, however, is that full and rational discussion furthers sound regulation and necessary reform. The image of the profession cannot be enhanced without improving the substance of its practice. The objective of the profession is to ensure that "the ethical standards of lawyers are linked to the service and protection of clients." Ohralik, Today's opinion is a serious departure, not only from our prior decisions involving attorney advertising, but also from the principles that govern the transmission of commercial speech. The Court's opinion reflects a new-found and illegitimate confidence that it, along with the Supreme Court of Florida, knows what is best for the Bar and its clients. Self-assurance has always been the hallmark of a censor. That is why under the First Amendment the public, not the State, has the right and the power to decide what ideas and information are deserving of their adherence. "[T]he general rule is that the speaker and the not the government, assess the value of the information presented." 507 U. S., at 7. By validating Florida's rule, today's majority is complicit in the Bar's censorship. For these reasons, I dissent from the opinion of the Court and from its judgment.

Justice Ginsburg

majority

Empire Healthchoice Assurance, Inc. v. McVeigh

2006-06-15

https://www.courtlistener.com/opinion/145643/empire-healthchoice-assurance-inc-v-mcveigh/

https://www.courtlistener.com/api/rest/v3/clusters/145643/

2005-068

The Federal Employees Health Benefits Act of 1959 (FEHBA), 5 U.S. C. § 8901 et seq. (2000 ed. and Supp. III), establishes a comprehensive program of health insurance for federal employees. The Act authorizes the Office of Personnel Management (OPM) to contract with private carriers to offer federal employees an array of health-care plans. See § 8902(a) (2000 ed.). Largest of the plans for which OPM has contracted, annually since 1960, is the Blue Cross Blue Shield Service Benefit Plan (Plan), administered by local Blue Cross Blue Shield companies. This case concerns the proper forum for reimbursement claims when a Plan beneficiary, injured in an accident, whose medical bills have been paid by the Plan administrator, recovers damages (unaided by the carrier-administrator) in a state-court tort action against a third party alleged to have caused the accident. *683 FEHBA contains a preemption clause, § 8902(m)(1), displacing state law on issues relating to "coverage or benefits" afforded by health-care plans. The Act contains no provision addressing the subrogation or reimbursement rights of carriers. Successive annual contracts between OPM and the Blue Cross Blue Shield Association (BCBSA) have obligated the carrier to make "a reasonable effort" to recoup amounts paid for medical care. App. 95, 125. The statement of benefits distributed by the carrier alerts enrollees that all recoveries they receive "must be used to reimburse the Plan for benefits paid." Id., at 132; see also id., at 146, 152. The instant case originated when the administrator of a Plan beneficiary's estate pursued tort litigation in state court against parties alleged to have caused the beneficiary's injuries. The carrier had notice of the state-court action, but took no part in it. When the tort action terminated in a settlement, the carrier filed suit in federal court seeking reimbursement of the full amount it had paid for the beneficiary's medical care. The question presented is whether 28 U.S. C. § 1331 (authorizing jurisdiction over "civil actions arising under the . . . laws . . . of the United States") encompasses the carrier's action. We hold it does not. FEHBA itself provides for federal-court jurisdiction only in actions against the United States. Congress could decide and provide that reimbursement claims of the kind here involved warrant the exercise of federal-court jurisdiction. But claims of this genre, seeking recovery from the proceeds of state-court litigation, are the sort ordinarily resolved in state courts. Federal courts should await a clear signal from Congress before treating such auxiliary claims as "arising under" the laws of the United States. I FEHBA assigns to OPM responsibility for negotiating and regulating health-benefits plans for federal employees. See *684 5 U.S. C. § 8902(a). OPM contracts with carriers, FEHBA instructs, "shall contain a detailed statement of benefits offered and shall include such maximums, limitations, exclusions, and other definitions of benefits as [OPM] considers necessary or desirable." § 8902(d). Pursuant to FEHBA, OPM entered into a contract in 1960 with the BCBSA to establish a nationwide fee-for-service health plan, the terms of which are renegotiated annually. As FEHBA prescribes, the Federal Government pays about 75% of the premiums; the enrollee pays the rest. § 8906(b). Premiums thus shared are deposited in a special Treasury Fund, the Federal Employees Health Benefits Fund, § 8909(a). Carriers draw against the Fund to pay for covered health-care benefits. Ibid.; see also 48 CFR § 1632.170(b) (2005). The contract between OPM and the BCBSA provides: "By enrolling or accepting services under this contract, [enrollees and their eligible dependents] are obligated to all terms, conditions, and provisions of this contract." App. 90. An appended brochure sets out the benefits the carrier shall provide, see id., at 89, and the carrier's subrogation and recovery rights, see id., at 100. Each enrollee, as FEHBA directs, receives a statement of benefits conveying information about the Plan's coverage and conditions. 5 U.S. C. § 8907(b). Concerning reimbursement and subrogation, matters FEHBA itself does not address, the BCBSA Plan's statement of benefits reads in part: "If another person or entity . . . causes you to suffer an injury or illness, and if we pay benefits for that injury or illness, you must agree to the following: "All recoveries you obtain (whether by lawsuit, settlement, or otherwise), no matter how described or designated, must be used to reimburse us in full for benefits we paid. Our share of any recovery extends only to the amount of benefits we have paid or will pay to you or, if applicable, to your heirs, administrators, successors, or assignees. ..... *685 "If you do not seek damages for your illness or injury, you must permit us to initiate recovery on your behalf (including the right to bring suit in your name). This is called subrogation. "If we pursue a recovery of the benefits we have paid, you must cooperate in doing what is reasonably necessary to assist us. You must not take any action that may prejudice our rights to recover." App. 165.[1] If the participant does not voluntarily reimburse the Plan, the contract requires the carrier to make a "reasonable effort to seek recovery of amounts . . . it is entitled to recover in cases . . . brought to its attention." Id., at 95, 125. Pursuant to the OPM—BCBSA master contract, reimbursements obtained by the carrier must be returned to the Treasury Fund. See id., at 92, 118-119. FEHBA contains a preemption provision, which originally provided: "The provisions of any contract under this chapter which relate to the nature or extent of coverage or benefits (including payments with respect to benefits) shall supersede and preempt any State or local law, or any regulation issued thereunder, which relates to health insurance or plans to the extent that such law or regulation is inconsistent with such contractual provisions." 5 U.S. C. § 8902(m)(1) (1994 ed.). *686 To ensure uniform coverage and benefits under plans OPM negotiates for federal employees, see H. R. Rep. No. 95-282, p. 1 (1977), § 8902(m)(1) preempted "State laws or regulations which specify types of medical care, providers of care, extent of benefits, coverage of family members, age limits for family members, or other matters relating to health benefits or coverage," id., at 4-5 (noting that some States mandated coverage for services not included in federal plans, for example, chiropractic services). In 1998, Congress amended § 8902(m)(1) by deleting the words "to the extent that such law or regulation is inconsistent with such contractual provisions." Thus, under § 8902(m)(1) as it now reads, state law—whether consistent or inconsistent with federal plan provisions—is displaced on matters of "coverage or benefits." FEHBA contains but one provision addressed to federalcourt jurisdiction. That provision vests in federal district courts "original jurisdiction, concurrent with the United States Court of Federal Claims, of a civil action or claim against the United States founded on this chapter." § 8912. The purpose of this provision—evident from its reference to the Court of Federal Claims—was to carve out an exception to the statutory rule that claims brought against the United States and exceeding $10,000 must originate in the Court of Federal Claims. See 28 U.S. C. § 1346(a)(2) (establishing district courts' jurisdiction, concurrent with the Court of Federal Claims, over claims against the United States that do not exceed $10,000); see also S. Rep. No. 1654, 83d Cong., 2d Sess., 4-5 (1954) (commenting, with respect to an identical provision in the Federal Employees' Group Life Insurance Act, 5 U.S. C. § 8715, that the provision "would extend the jurisdiction of United States district courts above the $10,000 limitation now in effect"). Under a 1995 OPM regulation, suits contesting final OPM action denying health benefits "must be brought against OPM and not against the carrier or carrier's subcontractors." 5 CFR § 890.107(c) (2005). While this regulation channels *687 disputes over coverage or benefits into federal court by designating a United States agency (OPM) sole defendant, no law opens federal courts to carriers seeking reimbursement from beneficiaries or recovery from tortfeasors. Cf. 29 U.S. C. § 1132(e)(1) (provision of the Employee Retirement Income Security Act (ERISA) vesting in federal district courts "exclusive jurisdiction of civil actions under this subchapter"). And nothing in FEHBA's text prescribes a federal rule of decision for a carrier's claim against its insured or an alleged tortfeasor to share in the proceeds of a state-court tort action. II Petitioner Empire HealthChoice Assurance, Inc., doing business as Empire Blue Cross Blue Shield (Empire), is the entity that administers the BCBSA Plan as it applies to federal employees in New York State. Respondent Denise Finn McVeigh (McVeigh) is the administrator of the estate of Joseph E. McVeigh (Decedent), a former enrollee in the Plan. The Decedent was injured in an accident in 1997. Plan payments for the medical care he received between 1997 and his death in 2001 amounted to $157,309. McVeigh, on behalf of herself, the Decedent, and a minor child, commenced tort litigation in state court against parties alleged to have caused Decedent's injuries. On learning that the parties to the state-court litigation had agreed to settle the tort claims, Empire sought to recover the $157,309 it had paid out for the Decedent's medical care.[2] Of the $3,175,000 for which the settlement provided, McVeigh, in response to Empire's asserted reimbursement right, agreed to place $100,000 in escrow. Empire then filed suit in the United States District Court for the Southern District of New York, alleging that McVeigh *688 was in breach of the reimbursement provision of the Plan. As relief, Empire demanded $157,309, with no offset for attorney's fees or other litigation costs McVeigh incurred in pursuing the state-court settlement. McVeigh moved to dismiss on various grounds, among them, lack of subject-matter jurisdiction. See 396 F.3d 136, 139 (CA2 2005). Answering McVeigh's motion, Empire urged that the District Court had jurisdiction under 28 U.S. C. § 1331 because federal common law governed its reimbursement claim. In the alternative, Empire asserted that the Plan itself constituted federal law. See 396 F.3d, at 140. The District Court rejected both arguments and granted McVeigh's motion to dismiss for want of subject-matter jurisdiction. Ibid. A divided panel of the Court of Appeals for the Second Circuit affirmed, holding that "Empire's clai[m] arise[s] under state law." Id., at 150. FEHBA's text, the court observed, contains no authorization for carriers "to vindicate [in federal court] their rights [against enrollees] under FEHBAauthorized contracts"; therefore, the court concluded, "federal jurisdiction exists over this dispute only if federal common law governs Empire's claims." Id., at 140. Quoting Boyle v. United Technologies Corp., 487 U.S. 500, 507, 508 (1988), the appeals court stated that courts may create federal common law only when "the operation of state law would (1) `significant[ly] conflict' with (2) `uniquely federal interest[s].'" 396 F.3d, at 140. Empire maintained that its contract-derived claim against McVeigh implicated "`uniquely federal interest[s],'" because (1) reimbursement directly affects the United States Treasury and the cost of providing health benefits to federal employees; and (2) Congress had expressed its interest in maintaining uniformity among the States on matters relating to federal health-plan benefits. Id., at 141. The court acknowledged that the case involved distinctly federal interests, but found that Empire had not identified "specific ways in which the operation of state contract law, or indeed of *689 other laws of general application, would conflict materially with the federal policies underlying FEHBA in the circumstances presented." Id., at 150 (Sack, J., concurring); see id., at 142. The Court of Appeals next considered and rejected Empire's argument that FEHBA's preemption provision, 5 U.S. C. § 8902(m)(1), independently conferred federal jurisdiction. 396 F.3d, at 145-149. That provision, the court observed, is "a limited preemption clause that the instant dispute does not trigger." Id., at 145. Unlike § 8912, which "authoriz[es] federal jurisdiction over FEHBA-related . . . claims `against the United States,'" the court noted, § 8902(m)(1) "makes no reference to a federal right of action [in] or to federal jurisdiction [over]" the contract-derived reimbursement claim here at issue. 396 F.3d, at 145, and n. 7. Judge Raggi dissented. Id., at 151. In her view, FEHBA's preemption provision, § 8902(m)(1), as amended in 1998, both calls for the application of uniform federal common law to terms in a FEHBA plan and establishes federal jurisdiction over Empire's complaint. We granted certiorari, 546 U.S. 1085 (2005), to resolve a conflict among lower federal courts concerning the proper forum for claims of the kind Empire asserts. Compare Blue Cross & Blue Shield of Ill. v. Cruz, 396 F.3d 793, 799-800 (CA7 2005) (upholding federal jurisdiction), Caudill v. Blue Cross & Blue Shield of N. C., 999 F.2d 74, 77 (CA4 1993) (same), and Medcenters Health Care v. Ochs, 854 F. Supp. 589, 593, and n. 3 (Minn. 1993) (same), aff'd, 26 F.3d 865 (CA8 1994), with Goepel v. National Postal Mail Handlers Union, 36 F.3d 306, 314-315 (CA3 1994) (rejecting federal jurisdiction), and 396 F.3d, at 139 (decision below) (same). III Title 28 U.S. C. § 1331 vests in federal district courts "original jurisdiction" over "all civil actions arising under the Constitution, laws, or treaties of the United States." A *690 case "aris[es] under" federal law within the meaning of § 1331, this Court has said, if "a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Franchise Tax Bd. of Cal. v. Construction Laborers Vacation Trust for Southern Cal., 463 U.S. 1, 27-28 (1983). Empire and the United States, as amicus curiae, present two principal arguments in support of federal-question jurisdiction. Emphasizing our opinion in Jackson Transit Authority v. Transit Union, 457 U.S. 15, 22 (1982), and cases cited therein, they urge that Empire's complaint raises a federal claim because it seeks to vindicate a contractual right contemplated by a federal statute, a right that Congress intended to be federal in nature. See Brief for Petitioner 14-31; Brief for United States 12-23. FEHBA's preemption provision, Empire and the United States contend, demonstrates Congress' intent in this regard. The United States argues, alternatively, that there is federal jurisdiction here, as demonstrated by our recent decision in Grable & Sons Metal Products, Inc. v. Darue Engineering & Mfg., 545 U.S. 308 (2005), because "federal law is a necessary element of [Empire's] claim." Brief for United States 25; accord Brief for Petitioner 41, n. 5. We address these arguments in turn. But first, we respond to the dissent's view that Empire and the United States have engaged in unnecessary labor, for Clearfield Trust Co. v. United States, 318 U.S. 363 (1943), provides "a basis for federal jurisdiction" in this case. Post, at 702. A Clearfield is indeed a pathmarking precedent on the authority of federal courts to fashion uniform federal common law on issues of national concern. See Friendly, In Praise of Erie—and of the New Federal Common Law, 39 N. Y. U. L. Rev. 383, 409-410 (1964). But the dissent is mistaken in supposing that the Clearfield doctrine covers this case. *691 Clearfield was a suit by the United States to recover from a bank the amount paid on a Government check on which the payee's name had been forged. 318 U.S., at 365. Because the United States was the plaintiff, federal-court jurisdiction was solidly grounded. See ibid. ("This suit was instituted. . . by the United States . . ., the jurisdiction of the federal District Court being invoked pursuant to the provisions of § 24(1) of the Judicial Code, 28 U.S. C. § 41(1)," now contained in 28 U.S. C. §§ 1332, 1345, 1359). The case presented a vertical choice-of-law issue: Did state law under Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), or a court-fashioned federal rule of decision (federal common law) determine the merits of the controversy? The Court held that "[t]he rights and duties of the United States on commercial paper which it issues are governed by federal rather than [state] law." 318 U.S., at 366. In post-Clearfield decisions, and with the benefit of enlightened commentary, see, e. g., Friendly, supra, at 410, the Court has "made clear that uniform federal law need not be applied to all questions in federal government litigation, even in cases involving government contracts," R. Fallon, D. Meltzer, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 700 (5th ed. 2003) (hereinafter Hart and Wechsler).[3] "[T]he prudent course," we have recognized, is often "to adopt the readymade body of state *692 law as the federal rule of decision until Congress strikes a different accommodation." United States v. Kimbell Foods, Inc., 440 U.S. 715, 740 (1979). Later, in Boyle, the Court telescoped the appropriate inquiry, focusing it on the straightforward question whether the relevant federal interest warrants displacement of state law. See 487 U.S., at 507, n. 3. Referring simply to "the displacement of state law," the Court recognized that prior cases had treated discretely (1) the competence of federal courts to formulate a federal rule of decision, and (2) the appropriateness of declaring a federal rule rather than borrowing, incorporating, or adopting state law in point. The Court preferred "the more modest terminology," questioning whether "the distinction between displacement of state law and displacement of federal law's incorporation of state law ever makes a practical difference." Ibid. Boyle made two further observations here significant. First, Boyle explained, the involvement of "an area of uniquely federal interest. . . establishes a necessary, not a sufficient, condition for the displacement of state law." Id., at 507. Second, in some cases, an "entire body of state law" may conflict with the federal interest and therefore require replacement. Id., at 508. But in others, the conflict is confined, and "only particular elements of state law are superseded." Ibid. The dissent describes this case as pervasively federal, post, at 702, and "the provisions . . . here [as] just a few scattered islands in a sea of federal contractual provisions," post, at 709. But there is nothing "scattered" about the provisions on reimbursement and subrogation in the OPM-BCBSA master contract. See supra, at 684-685. Those provisions are linked together and depend upon a recovery from a third party under terms and conditions ordinarily governed by state law. See infra, at 698.[4] The Court of *693 Appeals, whose decision we review, trained on the matter of reimbursement, not, as the dissent does, on FEHBA-authorized contracts at large. So focused, the appeals court determined that Empire has not demonstrated a "significant conflict . . . between an identifiable federal policy or interest and the operation of state law." 396 F.3d, at 150 (Sack, J., concurring) (quoting Boyle, 487 U. S., at 507); see 396 F.3d, at 140-141. Unless and until that showing is made, there is no cause to displace state law, much less to lodge this case in federal court. B We take up next Empire's Jackson Transit-derived argument, which is, essentially, a more tailored variation of the theme sounded in the dissent. It is undisputed that Congress has not expressly created a federal right of action enabling insurance carriers like Empire to sue health-care beneficiaries in federal court to enforce reimbursement rights under contracts contemplated by FEHBA. Empire and the United States nevertheless argue that, under our 1982 opinion in Jackson Transit, Empire's claim for reimbursement, arising under the contract between OPM and the BCBSA, "states a federal claim" because Congress intended all rights and duties stemming from that contract to be "federal in nature." Brief for United States as Amicus Curiae 12; see Brief for Petitioner 18-29. We are not persuaded by this argument. The reliance placed by Empire and the United States on Jackson Transit is surprising, for that decision held there was no federal jurisdiction over the claim in suit. The federal statute there involved, § 13(c) of the Urban Mass Transportation Act of 1964 (UMTA), 78 Stat. 307 (then codified at 49 U.S. C. § 1609(c) (1976 ed.)), conditioned a governmental unit's receipt of federal funds to acquire a privately owned transit company on preservation of collective-bargaining rights enjoyed by the acquired company's employees. 457 U.S., at 17-18. The city of Jackson, Tennessee, with federal financial assistance, acquired a failing private bus company *694 and turned it into a public entity, the Jackson Transit Authority. Id., at 18. To satisfy the condition on federal aid, the transit authority entered into a "§ 13(c) agreement" with the union that represented the private company's employees, and the Secretary of Labor certified that agreement as "fair and equitable." Ibid. (internal quotation marks omitted). For several years thereafter, the transit authority covered its unionized workers in a series of collective-bargaining agreements. Eventually, however, the Authority notified the union that it would no longer adhere to collective-bargaining undertakings. Id., at 19. The union commenced suit in federal court alleging breach of the § 13(c) agreement and of the latest collective-bargaining agreement. Ibid. This Court determined that the case did not arise under federal law, but was instead "governed by state law [to be] applied in state cour[t]." Id., at 29. The Court acknowledged in Jackson Transit that "on several occasions [we had] determined that a plaintiff stated a federal claim when he sued to vindicate contractual rights set forth by federal statutes, [even though] the relevant statutes lacked express provisions creating federal causes of action." Id., at 22 (emphasis added) (citing Machinists v. Central Airlines, Inc., 372 U.S. 682 (1963) (union had a federal right of action to enforce an airline-adjustment-board award included in a collective-bargaining contract pursuant to a provision of the Railway Labor Act); Norfolk & Western R. Co. v. Nemitz, 404 U.S. 37 (1971) (railroad's employees stated federal claims when they sought to enforce assurances made by the railroad to secure Interstate Commerce Commission approval of a consolidation under a provision of the Interstate Commerce Act); Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 18-19 (1979) (permitting federal suit for rescission of a contract declared void by a provision of the Investment Advisers Act of 1940)). But prior decisions, we said, "d[id] not dictate the result in [the Jackson Transit] case," for in each case, "the critical factor" in determining "the scope of *695 rights and remedies under a federal statute . . . is the congressional intent behind the particular provision at issue." 457 U.S., at 22. "In some ways," the Jackson Transit Court said, the UMTA "seem[ed] to make § 13(c) agreements and collective-bargaining contracts creatures of federal law." Id., at 23. In this regard, the Court noted, § 13(c) "demand[ed] `fair and equitable arrangements' as prerequisites for federal aid; it require[d] the approval of the Secretary of Labor for those arrangements; it specifie[d] five different varieties of protective provisions that must be included among the § 13(c) arrangements; and it expressly incorporate[d] the protective arrangements into the grant contract between the recipient and the Federal Government." Ibid. (quoting 49 U.S. C. § 1609(c) (1976 ed.)). But there were countervailing considerations. The Court observed that "labor relations between local governments and their employees are the subject of a longstanding statutory exemption from the National Labor Relations Act." 457 U.S., at 23. "Section 13(c)," the Court continued, "evince[d] no congressional intent to upset the decision in the [NLRA] to permit state law to govern the relationships between local governmental entities and the unions representing their employees." Id., at 23-24. Legislative history was corroborative. "A consistent theme," the Court found, "[ran] throughout the consideration of § 13(c): Congress intended that labor relations between transit workers and local governments would be controlled by state law." Id., at 24. We therefore held that the union had come to the wrong forum. Congress had indeed provided for § 13(c) agreements and collective-bargaining contracts stemming from them, but in the Court's judgment, the union's proper recourse for enforcement of those contracts was a suit in state court. *696 Measured against the Court's discussion in Jackson Transit about when a claim arises under federal law, Empire's contract-derived claim for reimbursement is not a "creatur[e] of federal law." Id., at 23. True, distinctly federal interests are involved. Principally, reimbursements are credited to a federal fund, and the OPM-BCBSA master contract could be described as "federal in nature" because it is negotiated by a federal agency and concerns federal employees. See supra, at 683-684. But, as in Jackson Transit, countervailing considerations control. Among them, the reimbursement right in question, predicated on a FEHBA-authorized contract, is not a prescription of federal law. See supra, at 684. And, of prime importance, "Congress considered jurisdictional issues in enacting FEHBA[,] . . . confer[ring] federal jurisdiction where it found it necessary to do so." 396 F.3d, at 145, n. 7. FEHBA's jurisdictional provision, 5 U.S. C. § 8912, opens the federal district-court door to civil actions "against the United States." See supra, at 686. OPM's regulation, 5 CFR § 890.107(c) (2005), instructs enrollees who seek to challenge benefit denials to proceed in court against OPM "and not against the carrier or carrier's subcontractors." See ibid. Read together, these prescriptions "ensur[e] that suits brought by beneficiaries for denial of benefits will land in federal court." 396 F.3d, at 145, n. 7. Had Congress found it necessary or proper to extend federal jurisdiction further, in particular, to encompass contract-derived reimbursement claims between carriers and insured workers, it would have been easy enough for Congress to say so. Cf. 29 U.S. C. § 1132(a)(3) (authorizing suit in federal court "by a participant, beneficiary, or fiduciary" of a pension or health plan governed by ERISA to gain redress for violations of "this subchapter or the terms of the plan"). We have no warrant to expand Congress' jurisdictional grant "by judicial decree." See Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 377 (1994). *697 Jackson Transit, Empire points out, referred to decisions "demonstrat[ing] that . . . private parties in appropriate cases may sue in federal court to enforce contractual rights created by federal statutes." 457 U.S., at 22. See Brief for Petitioner 15. This case, however, involves no right created by federal statute. As just reiterated, while the OPM—BCBSA master contract provides for reimbursement, FEHBA's text itself contains no provision addressing the reimbursement or subrogation rights of carriers. Nor do we read 5 U.S. C. § 8902(m)(1), FEHBA's preemption prescription, see supra, at 685-686, as a jurisdiction-conferring provision. That choice-of-law prescription is unusual in that it renders preemptive contract terms in health insurance plans, not provisions enacted by Congress. See 396 F.3d, at 143-145; id., at 151 (Sack, J., concurring). A prescription of that unusual order warrants cautious interpretation. Section 8902(m)(1) is a puzzling measure, open to more than one construction, and no prior decision seems to us precisely on point. Reading the reimbursement clause in the master OPM—BCBSA contract as a condition or limitation on "benefits" received by a federal employee, the clause could be ranked among "[contract] terms . . . relat[ing] to . . . coverage or benefits" and "payments with respect to benefits," thus falling within § 8902(m)(1)'s compass. See Brief for United States as Amicus Curiae 20; Reply Brief 8-9. On the other hand, a claim for reimbursement ordinarily arises long after "coverage" and "benefits" questions have been resolved, and corresponding "payments with respect to benefits" have been made to care providers or the insured. With that consideration in view, § 8902(m)(1)'s words may be read to refer to contract terms relating to the beneficiary's entitlement (or lack thereof) to Plan payment for certain healthcare services he or she has received, and not to terms relating to the carrier's postpayments right to reimbursement. See Brief for Julia Cruz as Amicus Curiae 10, 11. *698 To decide this case, we need not choose between those plausible constructions. If contract-based reimbursement claims are not covered by FEHBA's preemption provision, then federal jurisdiction clearly does not exist. But even if FEHBA's preemption provision reaches contract-based reimbursement claims, that provision is not sufficiently broad to confer federal jurisdiction. If Congress intends a preemption instruction completely to displace ordinarily applicable state law, and to confer federal jurisdiction thereby, it may be expected to make that atypical intention clear. Cf. Columbus v. Ours Garage & Wrecker Service, Inc., 536 U.S. 424, 432-433 (2002) (citing Wisconsin Public Intervenor v. Mortier, 501 U.S. 597, 605 (1991)). Congress has not done so here. Section 8902(m)(1)'s text does not purport to render inoperative any and all state laws that in some way bear on federal employee-benefit plans. Cf. 29 U.S. C. § 1144(a) (portions of ERISA "supersede any and all State laws insofar as they may now or hereafter relate to any employee benefit plan"). And, as just observed, see supra, at 697, given that § 8902(m)(1) declares no federal law preemptive, but instead, terms of an OPM—BCBSA negotiated contract, a modest reading of the provision is in order. Furthermore, a reimbursement right of the kind Empire here asserts stems from a personal-injury recovery, and the claim underlying that recovery is plainly governed by state law. We are not prepared to say, based on the presentations made in this case, that under § 8902(m)(1), an OPM—BCBSA contract term would displace every condition state law places on that recovery. As earlier observed, the BCBSA Plan's statement of benefits links together the carrier's right to reimbursement from the insured and its right to subrogation. See supra, at 684-685. Empire's subrogation right allows the carrier, once it has paid an insured's medical expenses, to recover directly from a third party responsible for the insured's injury or *699 illness. See 16 G. Couch, Cyclopedia of Insurance Law § 61:1 (2d ed. 1982). Had Empire taken that course, no access to a federal forum could have been predicated on the OPM-BCBSA contract right. The tortfeasors' liability, whether to the insured or the insurer, would be governed not by an agreement to which the tortfeasors are strangers, but by state law, and § 8902(m)(1) would have no sway. In sum, the presentations before us fail to establish that § 8902(m)(1) leaves no room for any state law potentially bearing on federal employee-benefit plans in general, or carrier-reimbursement claims in particular. Accordingly, we extract from § 8902(m)(1) no prescription for federal-court jurisdiction. C We turn finally to the argument that Empire's reimbursement claim, even if it does not qualify as a "cause of action created by federal law," nevertheless arises under federal law for § 1331 purposes, because federal law is "a necessary element of the [carrier's] claim for relief." Brief for United States as Amicus Curiae 25-26 (quoting Grable, 545 U. S., at 312, and Jones v. R. R. Donnelley & Sons Co., 541 U.S. 369, 376 (2004)). This case, we are satisfied, does not fit within the special and small category in which the United States would place it. We first describe Grable, a recent decision that the United States identifies as exemplary,[5] and then explain why this case does not resemble that one. Grable involved real property belonging to Grable & Sons Metal Products, Inc. (Grable), which the Internal Revenue Service (IRS) seized to satisfy a federal tax deficiency. 545 U.S., at 310. Grable received notice of the seizure by certified mail before the IRS sold the property to Darue Engineering & Manufacturing (Darue). Ibid. Five years later, *700 Grable sued Darue in state court to quiet title. Grable asserted that Darue's record title was invalid because the IRS had conveyed the seizure notice improperly. Id., at 311. The governing statute, 26 U.S. C. § 6335(a), provides that "notice in writing shall be given . . . to the owner of the property . . . or shall be left at his usual place of abode or business . . . ." Grable maintained that § 6335(a) required personal service, not service by certified mail. 545 U.S., at 311. Darue removed the case to federal court. Alleging that Grable's claim of title depended on the interpretation of a federal statutory provision, i. e., § 6335(a) of the Internal Revenue Code, Darue invoked federal-question jurisdiction under 28 U.S. C. § 1331. We affirmed lower court determinations that the removal was proper. "The meaning of the federal tax provision," we said, "is an important issue of federal law that sensibly belongs in a federal court." 545 U.S., at 315. Whether Grable received notice adequate under § 6335(a), we observed, was "an essential element of [Grable's] quiet title claim"; indeed, "it appear[ed] to be the only. . . issue contested in the case." Ibid. This case is poles apart from Grable. Cf. Brief for United States as Amicus Curiae 27. The dispute there centered on the action of a federal agency (IRS) and its compatibility with a federal statute, the question qualified as "substantial," and its resolution was both dispositive of the case and would be controlling in numerous other cases. See 545 U.S., at 313. Here, the reimbursement claim was triggered, not by the action of any federal department, agency, or service, but by the settlement of a personal-injury action launched in state court, see supra, at 687-688, and the bottom-line practical issue is the share of that settlement properly payable to Empire. Grable presented a nearly "pure issue of law," one "that could be settled once and for all and thereafter would govern numerous tax sale cases." Hart and Wechsler 65 (2005 Supp.). In contrast, Empire's reimbursement claim, McVeigh's *701 Vecounsel represented without contradiction, is fact-bound and situation-specific. McVeigh contends that there were overcharges or duplicative charges by care providers, and seeks to determine whether particular services were properly attributed to the injuries caused by the 1997 accident and not rendered for a reason unrelated to the accident. See Tr. of Oral Arg. 44, 53. The United States observes that a claim for reimbursement may also involve as an issue "[the] extent, if any, to which the reimbursement should take account of attorney's fees expended . . . to obtain the tort recovery." Brief as Amicus Curiae 29. Indeed it may. But it is hardly apparent why a proper "federal-state balance," see id., at 28, would place such a nonstatutory issue under the complete governance of federal law, to be declared in a federal forum. The state court in which the personal-injury suit was lodged is competent to apply federal law, to the extent it is relevant, and would seem best positioned to determine the lawyer's part in obtaining, and his or her fair share in, the tort recovery. The United States no doubt "has an overwhelming interest in attracting able workers to the federal workforce," and "in the health and welfare of the federal workers upon whom it relies to carry out its functions." Id., at 10. But those interests, we are persuaded, do not warrant turning into a discrete and costly "federal case" an insurer's contract-derived claim to be reimbursed from the proceeds of a federal worker's state-court-initiated tort litigation. In sum, Grable emphasized that it takes more than a federal element "to open the `arising under' door." 545 U.S., at 313. This case cannot be squeezed into the slim category Grable exemplifies. * * * For the reasons stated, the judgment of the Court of Appeals for the Second Circuit is Affirmed.

The Federal Employees Health Benefits Act of 1959 (FEHBA), 5 U.S. C. 8901 et seq. (2000 ed. Supp. III), establishes a comprehensive program of health insurance for federal The Act authorizes the Office of Personnel Management (OPM) to contract with private carriers to offer federal employees an array of health-care plans. See 8902(a) (2000 ed.). Largest of the plans for which OPM has contracted, annually since 1960, is the Blue Cross Blue Shield Service Benefit Plan (Plan), administered by local Blue Cross Blue Shield companies. This case concerns the proper forum for reimbursement claims when a Plan beneficiary, injured in an accident, whose medical bills have been paid by the Plan administrator, recovers damages (unaided by the carrier-administrator) in a state-court tort action against a third party alleged to have caused the accident. *683 FEHBA contains a preemption clause, 8902(m)(1), displacing state law on issues relating to "coverage or benefits" afforded by health-care plans. The Act contains no provision addressing the subrogation or reimbursement rights of carriers. Successive annual contracts between OPM the Blue Cross Blue Shield Association (BCBSA) have obligated the carrier to make "a reasonable effort" to recoup amounts paid for medical care. App. 95, 125. The statement of benefits distributed by the carrier alerts enrollees that all recoveries they receive "must be used to reimburse the Plan for benefits paid." ; see also The instant case originated when the administrator of a Plan beneficiary's estate pursued tort litigation in state court against parties alleged to have caused the beneficiary's injuries. The carrier had notice of the state-court action, but took no part in it. When the tort action terminated in a settlement, the carrier filed suit in federal court seeking reimbursement of the full amount it had paid for the beneficiary's medical care. The question presented is whether 28 U.S. C. 1331 (authorizing jurisdiction over "civil actions arising under the laws of the United States") encompasses the carrier's action. We hold it does not. FEHBA itself provides for federal-court jurisdiction only in actions against the United States. Congress could decide provide that reimbursement claims of the kind here involved warrant the exercise of federal-court But claims of this genre, seeking recovery from the proceeds of state-court litigation, are the sort ordinarily resolved in state courts. Federal courts should await a clear signal from Congress before treating such auxiliary claims as "arising under" the laws of the United States. I FEHBA assigns to OPM responsibility for negotiating regulating health-benefits plans for federal See *684 5 U.S. C. 8902(a). OPM contracts with carriers, FEHBA instructs, "shall contain a detailed statement of benefits offered shall include such maximums, limitations, exclusions, other definitions of benefits as [OPM] considers necessary or desirable." 8902(d). Pursuant to FEHBA, OPM entered into a contract in 1960 with the BCBSA to establish a nationwide fee-for-service health plan, the terms of which are renegotiated annually. As FEHBA prescribes, the Federal Government pays about 75% of the premiums; the enrollee pays the rest. 8906(b). Premiums thus shared are deposited in a special Treasury Fund, the Federal Employees Health Benefits Fund, 8909(a). Carriers draw against the Fund to pay for covered health-care benefits. ; see also 48 CFR 1632.170(b) The contract between OPM the BCBSA provides: "By enrolling or accepting services under this contract, [enrollees their eligible dependents] are obligated to all terms, conditions, provisions of this contract." App. 90. An appended brochure sets out the benefits the carrier shall provide, see the carrier's subrogation recovery rights, see Each enrollee, as FEHBA directs, receives a statement of benefits conveying information about the Plan's coverage conditions. 5 U.S. C. 8907(b). Concerning reimbursement subrogation, matters FEHBA itself does not address, the BCBSA Plan's statement of benefits reads in part: "If another person or entity causes you to suffer an injury or illness, if we pay benefits for that injury or illness, you must agree to the following: "All recoveries you obtain (whether by lawsuit, settlement, or otherwise), no matter how described or designated, must be used to reimburse us in full for benefits we paid. Our share of any recovery extends only to the amount of benefits we have paid or will pay to you or, if applicable, to your heirs, administrators, successors, or assignees. *685 "If you do not seek damages for your illness or injury, you must permit us to initiate recovery on your behalf (including the right to bring suit in your name). This is called subrogation. "If we pursue a recovery of the benefits we have paid, you must cooperate in doing what is reasonably necessary to assist us. You must not take any action that may prejudice our rights to recover." App. 165.[1] If the participant does not voluntarily reimburse the Plan, the contract requires the carrier to make a "reasonable effort to seek recovery of amounts it is entitled to recover in cases brought to its attention." Pursuant to the OPM—BCBSA master contract, reimbursements obtained by the carrier must be returned to the Treasury Fund. See FEHBA contains a preemption provision, which originally provided: "The provisions of any contract under this chapter which relate to the nature or extent of coverage or benefits (including payments with respect to benefits) shall supersede preempt any State or local law, or any regulation issued thereunder, which relates to health insurance or plans to the extent that such law or regulation is inconsistent with such contractual provisions." 5 U.S. C. 8902(m)(1) ( ed.). *686 To ensure uniform coverage benefits under plans OPM negotiates for federal employees, see H. R. Rep. No. 95-282, p. 1 (19), 8902(m)(1) preempted "State laws or regulations which specify types of medical care, providers of care, extent of benefits, coverage of family members, age limits for family members, or other matters relating to health benefits or coverage," In 1998, Congress amended 8902(m)(1) by deleting the words "to the extent that such law or regulation is inconsistent with such contractual provisions." Thus, under 8902(m)(1) as it now reads, state law—whether consistent or inconsistent with federal plan provisions—is displaced on matters of "coverage or benefits." FEHBA contains but one provision addressed to federalcourt That provision vests in federal district courts "original jurisdiction, concurrent with the United States Court of Federal Claims, of a civil action or claim against the United States founded on this chapter." 8912. The purpose of this provision—evident from its reference to the Court of Federal Claims—was to carve out an exception to the statutory rule that claims brought against the United States exceeding $10,000 must originate in the Court of Federal Claims. See 28 U.S. C. 1346(a)(2) (establishing district courts' jurisdiction, concurrent with the Court of Federal Claims, over claims against the United States that do not exceed $10,000); see also S. Rep. No. 1654, 83d Cong., 2d Sess., 4-5 (1954) (commenting, with respect to an identical provision in the Federal Employees' Group Life Insurance Act, 5 U.S. C. 8715, that the provision "would extend the jurisdiction of United States district courts above the $10,000 limitation now in effect"). Under a 1995 OPM regulation, suits contesting final OPM action denying health benefits "must be brought against OPM not against the carrier or carrier's subcontractors." 5 CFR 890.107(c) While this regulation channels *687 disputes over coverage or benefits into federal court by designating a United States agency (OPM) sole defendant, no law opens federal courts to carriers seeking reimbursement from beneficiaries or recovery from tortfeasors. Cf. 29 U.S. C. 1132(e)(1) (provision of the Employee Retirement Income Security Act (ERISA) vesting in federal district courts "exclusive jurisdiction of civil actions under this subchapter"). And nothing in FEHBA's text prescribes a federal rule of decision for a carrier's claim against its insured or an alleged tortfeasor to share in the proceeds of a state-court tort action. II Petitioner Empire HealthChoice Assurance, Inc., doing business as Empire Blue Cross Blue Shield (Empire), is the entity that administers the BCBSA Plan as it applies to federal employees in New York State. Respondent Denise Finn McVeigh (McVeigh) is the administrator of the estate of Joseph E. McVeigh (Decedent), a former enrollee in the Plan. The Decedent was injured in an accident in 1997. Plan payments for the medical care he received between 1997 his death in 2001 amounted to $157,309. McVeigh, on behalf of herself, the Decedent, a minor child, commenced tort litigation in state court against parties alleged to have caused Decedent's injuries. On learning that the parties to the state-court litigation had agreed to settle the tort claims, Empire sought to recover the $157,309 it had paid out for the Decedent's medical care.[2] Of the $3,175,000 for which the settlement provided, McVeigh, in response to Empire's asserted reimbursement right, agreed to place $100,000 in escrow. Empire then filed suit in the United States District Court for the Southern District of New York, alleging that McVeigh *688 was in breach of the reimbursement provision of the Plan. As relief, Empire demed $157,309, with no offset for attorney's fees or other litigation costs McVeigh incurred in pursuing the state-court settlement. McVeigh moved to dismiss on various grounds, among them, lack of subject-matter See Answering McVeigh's motion, Empire urged that the District Court had jurisdiction under 28 U.S. C. 1331 because federal common law governed its reimbursement claim. In the alternative, Empire asserted that the Plan itself constituted federal law. See The District Court rejected both arguments granted McVeigh's motion to dismiss for want of subject-matter A divided panel of the Court of Appeals for the Second Circuit affirmed, holding that "Empire's clai[m] arise[s] under state law." FEHBA's text, the court observed, contains no authorization for carriers "to vindicate [in federal court] their rights [against enrollees] under FEHBAauthorized contracts"; therefore, the court concluded, "federal jurisdiction exists over this dispute only if federal common law governs Empire's claims." Quoting the appeals court stated that courts may create federal common law only when "the operation of state law would (1) `significant[ly] conflict' with (2) `uniquely federal interest[s].'" Empire maintained that its contract-derived claim against McVeigh implicated "`uniquely federal interest[s],'" because (1) reimbursement directly affects the United States Treasury the cost of providing health benefits to federal employees; (2) Congress had expressed its interest in maintaining uniformity among the States on matters relating to federal health-plan benefits. The court acknowledged that the case involved distinctly federal interests, but found that Empire had not identified "specific ways in which the operation of state contract law, or indeed of *689 other laws of general application, would conflict materially with the federal policies underlying FEHBA in the circumstances presented." ; see The Court of Appeals next considered rejected Empire's argument that FEHBA's preemption provision, 5 U.S. C. 8902(m)(1), independently conferred federal -149. That provision, the court observed, is "a limited preemption clause that the instant dispute does not trigger." Unlike 8912, which "authoriz[es] federal jurisdiction over FEHBA-related claims `against the United States,'" the court noted, 8902(m)(1) "makes no reference to a federal right of action [in] or to federal jurisdiction [over]" the contract-derived reimbursement claim here at n. 7. Judge Raggi dissented. In her view, FEHBA's preemption provision, 8902(m)(1), as amended in 1998, both calls for the application of uniform federal common law to terms in a FEHBA plan establishes federal jurisdiction over Empire's complaint. We granted certiorari, to resolve a conflict among lower federal courts concerning the proper forum for claims of the kind Empire asserts. Compare Blue Cross & Blue Shield of Medcenters Health aff'd, with 396 F.3d, at III Title 28 U.S. C. 1331 vests in federal district courts "original jurisdiction" over "all civil actions arising under the Constitution, laws, or treaties of the United States." A *690 case "aris[es] under" federal law within the meaning of 1331, this Court has said, if "a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff's right to relief necessarily depends on resolution of a substantial question of federal law." Franchise Tax Bd. of Empire the United States, as amicus curiae, present two principal arguments in support of federal-question Emphasizing our opinion in Jackson Transit cases cited therein, they urge that Empire's complaint raises a federal claim because it seeks to vindicate a contractual right contemplated by a federal statute, a right that Congress intended to be federal in nature. See Brief for Petitioner 14-31; Brief for United States 12-23. FEHBA's preemption provision, Empire the United States contend, demonstrates Congress' intent in this regard. The United States argues, alternatively, that there is federal jurisdiction here, as demonstrated by our recent decision in & Sons Metal Products, because "federal law is a necessary element of [Empire's] claim." Brief for United States 25; accord Brief for Petitioner 41, n. 5. We address these arguments in turn. But first, we respond to the dissent's view that Empire the United States have engaged in unnecessary labor, for Clearfield Trust provides "a basis for federal jurisdiction" in this case. Post, at 702. A Clearfield is indeed a pathmarking precedent on the authority of federal courts to fashion uniform federal common law on issues of national concern. See In Praise of Erie— of the New Federal Common Law, 39 N. Y. U. L. Rev. 383, 409-410 (1964). But the dissent is mistaken in supposing that the Clearfield doctrine covers this case. *691 Clearfield was a suit by the United States to recover from a bank the amount paid on a Government check on which the payee's name had been forged. Because the United States was the plaintiff, federal-court jurisdiction was solidly grounded. See ("This suit was instituted. by the United States, the jurisdiction of the federal District Court being invoked pursuant to the provisions of 24(1) of the Judicial Code, 28 U.S. C. 41(1)," now contained in 28 U.S. C. 1332, 1345, 1359). The case presented a vertical choice-of-law issue: Did state law under Erie R. or a court-fashioned federal rule of decision (federal common law) determine the merits of the controversy? The Court held that "[t]he rights duties of the United States on commercial paper which it issues are governed by federal rather than [state] law." In post-Clearfield decisions, with the benefit of enlightened commentary, see, e. g., the Court has "made clear that uniform federal law need not be applied to all questions in federal government litigation, even in cases involving government contracts," R. Fallon, D. Meltzer, & D. Shapiro, Hart Wechsler's The Federal Courts the Federal System 700 (5th ed. 2003) (hereinafter Hart Wechsler).[3] "[T]he prudent course," we have recognized, is often "to adopt the readymade body of state *692 law as the federal rule of decision until Congress strikes a different accommodation." United Later, in the Court telescoped the appropriate inquiry, focusing it on the straightforward question whether the relevant federal interest warrants displacement of state law. See n. 3. Referring simply to "the displacement of state law," the Court recognized that prior cases had treated discretely (1) the competence of federal courts to formulate a federal rule of decision, (2) the appropriateness of declaring a federal rule rather than borrowing, incorporating, or adopting state law in point. The Court preferred "the more modest terminology," questioning whether "the distinction between displacement of state law displacement of federal law's incorporation of state law ever makes a practical difference." made two further observations here significant. First, explained, the involvement of "an area of uniquely federal interest. establishes a necessary, not a sufficient, condition for the displacement of state law." Second, in some cases, an "entire body of state law" may conflict with the federal interest therefore require replacement. But in others, the conflict is confined, "only particular elements of state law are superseded." The dissent describes this case as pervasively federal, post, at 702, "the provisions here [as] just a few scattered isls in a sea of federal contractual provisions," post, at 709. But there is nothing "scattered" about the provisions on reimbursement subrogation in the OPM-BCBSA master contract. See Those provisions are linked together depend upon a recovery from a third party under terms conditions ordinarily governed by state law. See infra, at 698.[4] The Court of *693 Appeals, whose decision we review, trained on the matter of reimbursement, not, as the dissent does, on FEHBA-authorized contracts at large. So focused, the appeals court determined that Empire has not demonstrated a "significant conflict between an identifiable federal policy or interest the operation of state law." 396 F.3d, (quoting 487 U. S., ); see -141. Unless until that showing is made, there is no cause to displace state law, much less to lodge this case in federal court. B We take up next Empire's Jackson Transit-derived argument, which is, essentially, a more tailored variation of the theme sounded in the dissent. It is undisputed that Congress has not expressly created a federal right of action enabling insurance carriers like Empire to sue health-care beneficiaries in federal court to enforce reimbursement rights under contracts contemplated by FEHBA. Empire the United States nevertheless argue that, under our 1982 opinion in Jackson Transit, Empire's claim for reimbursement, arising under the contract between OPM the BCBSA, "states a federal claim" because Congress intended all rights duties stemming from that contract to be "federal in nature." Brief for United States as Amicus Curiae 12; see Brief for Petitioner 18-29. We are not persuaded by this argument. The reliance placed by Empire the United States on Jackson Transit is surprising, for that decision held there was no federal jurisdiction over the claim in suit. The federal statute there involved, 13(c) of the Urban Mass Transportation Act of 1964 (UMTA), (then codified at 49 U.S. C. 1609(c) (1976 ed.)), conditioned a governmental unit's receipt of federal funds to acquire a privately owned transit company on preservation of collective-bargaining rights enjoyed by the acquired company's -18. The city of Jackson, Tennessee, with federal financial assistance, acquired a failing private bus company *694 turned it into a public entity, the Jackson Transit Authority. To satisfy the condition on federal aid, the transit authority entered into a " 13(c) agreement" with the union that represented the private company's employees, the Secretary of Labor certified that agreement as "fair equitable." For several years thereafter, the transit authority covered its unionized workers in a series of collective-bargaining agreements. Eventually, however, the Authority notified the union that it would no longer adhere to collective-bargaining undertakings. The union commenced suit in federal court alleging breach of the 13(c) agreement of the latest collective-bargaining agreement. This Court determined that the case did not arise under federal law, but was instead "governed by state law [to be] applied in state cour[t]." The Court acknowledged in Jackson Transit that "on several occasions [we had] determined that a plaintiff stated a federal claim when he sued to vindicate contractual rights set forth by federal statutes, [even though] the relevant statutes lacked express provisions creating federal causes of action." at ; Norfolk & Western R. ; Transamerica Mortgage Advisors, ). But prior decisions, we said, "d[id] not dictate the result in [the Jackson Transit] case," for in each case, "the critical factor" in determining "the scope of *695 rights remedies under a federal statute is the congressional intent behind the particular provision at " 457 U.S., at "In some ways," the Jackson Transit Court said, the UMTA "seem[ed] to make 13(c) agreements collective-bargaining contracts creatures of federal law." In this regard, the Court noted, 13(c) "dem[ed] `fair equitable arrangements' as prerequisites for federal aid; it require[d] the approval of the Secretary of Labor for those arrangements; it specifie[d] five different varieties of protective provisions that must be included among the 13(c) arrangements; it expressly incorporate[d] the protective arrangements into the grant contract between the recipient the Federal Government." (quoting 49 U.S. C. 1609(c) (1976 ed.)). But there were countervailing considerations. The Court observed that "labor relations between local governments their employees are the subject of a longsting statutory exemption from the National Labor Relations Act." 457 U.S., "Section 13(c)," the Court continued, "evince[d] no congressional intent to upset the decision in the [NLRA] to permit state law to govern the relationships between local governmental entities the unions representing their " -24. Legislative history was corroborative. "A consistent theme," the Court found, "[ran] throughout the consideration of 13(c): Congress intended that labor relations between transit workers local governments would be controlled by state law." We therefore held that the union had come to the wrong forum. Congress had indeed provided for 13(c) agreements collective-bargaining contracts stemming from them, but in the Court's judgment, the union's proper recourse for enforcement of those contracts was a suit in state court. *696 Measured against the Court's discussion in Jackson Transit about when a claim arises under federal law, Empire's contract-derived claim for reimbursement is not a "creatur[e] of federal law." True, distinctly federal interests are involved. Principally, reimbursements are credited to a federal fund, the OPM-BCBSA master contract could be described as "federal in nature" because it is negotiated by a federal agency concerns federal See But, as in Jackson Transit, countervailing considerations control. Among them, the reimbursement right in question, predicated on a FEHBA-authorized contract, is not a prescription of federal law. See And, of prime importance, "Congress considered jurisdictional issues in enacting FEHBA[,] confer[ring] federal jurisdiction where it found it necessary to do so." n. 7. FEHBA's jurisdictional provision, 5 U.S. C. 8912, opens the federal district-court door to civil actions "against the United States." See OPM's regulation, 5 CFR 890.107(c) instructs enrollees who seek to challenge benefit denials to proceed in court against OPM " not against the carrier or carrier's subcontractors." See Read together, these prescriptions "ensur[e] that suits brought by beneficiaries for denial of benefits will l in federal court." n. 7. Had Congress found it necessary or proper to extend federal jurisdiction further, in particular, to encompass contract-derived reimbursement claims between carriers insured workers, it would have been easy enough for Congress to say so. Cf. 29 U.S. C. 1132(a)(3) (authorizing suit in federal court "by a participant, beneficiary, or fiduciary" of a pension or health plan governed by ERISA to gain redress for violations of "this subchapter or the terms of the plan"). We have no warrant to exp Congress' jurisdictional grant "by judicial decree." See 3 *697 Jackson Transit, Empire points out, referred to decisions "demonstrat[ing] that private parties in appropriate cases may sue in federal court to enforce contractual rights created by federal statutes." 457 U.S., at See Brief for Petitioner 15. This case, however, involves no right created by federal statute. As just reiterated, while the OPM—BCBSA master contract provides for reimbursement, FEHBA's text itself contains no provision addressing the reimbursement or subrogation rights of carriers. Nor do we read 5 U.S. C. 8902(m)(1), FEHBA's preemption prescription, see as a jurisdiction-conferring provision. That choice-of-law prescription is unusual in that it renders preemptive contract terms in health insurance plans, not provisions enacted by Congress. See -145; A prescription of that unusual order warrants cautious interpretation. Section 8902(m)(1) is a puzzling measure, open to more than one construction, no prior decision seems to us precisely on point. Reading the reimbursement clause in the master OPM—BCBSA contract as a condition or limitation on "benefits" received by a federal employee, the clause could be ranked among "[contract] terms relat[ing] to coverage or benefits" "payments with respect to benefits," thus falling within 8902(m)(1)'s compass. See Brief for United States as Amicus Curiae 20; Reply Brief 8-9. On the other h, a claim for reimbursement ordinarily arises long after "coverage" "benefits" questions have been resolved, corresponding "payments with respect to benefits" have been made to care providers or the insured. With that consideration in view, 8902(m)(1)'s words may be read to refer to contract terms relating to the beneficiary's entitlement (or lack thereof) to Plan payment for certain healthcare services he or she has received, not to terms relating to the carrier's postpayments right to reimbursement. See Brief for Julia Cruz as Amicus Curiae 10, 11. *698 To decide this case, we need not choose between those plausible constructions. If contract-based reimbursement claims are not covered by FEHBA's preemption provision, then federal jurisdiction clearly does not exist. But even if FEHBA's preemption provision reaches contract-based reimbursement claims, that provision is not sufficiently broad to confer federal If Congress intends a preemption instruction completely to displace ordinarily applicable state law, to confer federal jurisdiction thereby, it may be expected to make that atypical intention clear. Cf. Congress has not done so here. Section 8902(m)(1)'s text does not purport to render inoperative any all state laws that in some way bear on federal employee-benefit plans. Cf. 29 U.S. C. 1144(a) (portions of ERISA "supersede any all State laws insofar as they may now or hereafter relate to any employee benefit plan"). And, as just observed, see given that 8902(m)(1) declares no federal law preemptive, but instead, terms of an OPM—BCBSA negotiated contract, a modest reading of the provision is in order. Furthermore, a reimbursement right of the kind Empire here asserts stems from a personal-injury recovery, the claim underlying that recovery is plainly governed by state law. We are not prepared to say, based on the presentations made in this case, that under 8902(m)(1), an OPM—BCBSA contract term would displace every condition state law places on that recovery. As earlier observed, the BCBSA Plan's statement of benefits links together the carrier's right to reimbursement from the insured its right to subrogation. See Empire's subrogation right allows the carrier, once it has paid an insured's medical expenses, to recover directly from a third party responsible for the insured's injury or *699 illness. See 16 G. Couch, Cyclopedia of Insurance Law 61:1 Had Empire taken that course, no access to a federal forum could have been predicated on the OPM-BCBSA contract right. The tortfeasors' liability, whether to the insured or the insurer, would be governed not by an agreement to which the tortfeasors are strangers, but by state law, 8902(m)(1) would have no sway. In sum, the presentations before us fail to establish that 8902(m)(1) leaves no room for any state law potentially bearing on federal employee-benefit plans in general, or carrier-reimbursement claims in particular. Accordingly, we extract from 8902(m)(1) no prescription for federal-court C We turn finally to the argument that Empire's reimbursement claim, even if it does not qualify as a "cause of action created by federal law," nevertheless arises under federal law for 1331 purposes, because federal law is "a necessary element of the [carrier's] claim for relief." Brief for United States as Amicus Curiae 25-26 ). This case, we are satisfied, does not fit within the special small category in which the United States would place it. We first describe a recent decision that the United States identifies as exemplary,[5] then explain why this case does not resemble that one. involved real property belonging to & Sons Metal Products, Inc. (), which the Internal Revenue Service (IRS) seized to satisfy a federal tax received notice of the seizure by certified mail before the IRS sold the property to Darue Engineering & Manufacturing (Darue). Five years later, *700 sued Darue in state court to quiet title. asserted that Darue's record title was invalid because the IRS had conveyed the seizure notice improperly. The governing statute, 26 U.S. C. 6335(a), provides that "notice in writing shall be given to the owner of the property or shall be left at his usual place of abode or business" maintained that 6335(a) required personal service, not service by certified 545 U.S., Darue removed the case to federal court. Alleging that 's claim of title depended on the interpretation of a federal statutory provision, i. e., 6335(a) of the Internal Revenue Code, Darue invoked federal-question jurisdiction under 28 U.S. C. 1331. We affirmed lower court determinations that the removal was proper. "The meaning of the federal tax provision," we said, "is an important issue of federal law that sensibly belongs in a federal court." Whether received notice adequate under 6335(a), we observed, was "an essential element of ['s] quiet title claim"; indeed, "it appear[ed] to be the only. issue contested in the case." This case is poles apart from Cf. Brief for United States as Amicus Curiae 27. The dispute there centered on the action of a federal agency (IRS) its compatibility with a federal statute, the question qualified as "substantial," its resolution was both dispositive of the case would be controlling in numerous other cases. See Here, the reimbursement claim was triggered, not by the action of any federal department, agency, or service, but by the settlement of a personal-injury action launched in state court, see the bottom-line practical issue is the share of that settlement properly payable to Empire. presented a nearly "pure issue of law," one "that could be settled once for all thereafter would govern numerous tax sale cases." Hart Wechsler 65 ( Supp.). In contrast, Empire's reimbursement claim, McVeigh's *701 Vecounsel represented without contradiction, is fact-bound situation-specific. McVeigh contends that there were overcharges or duplicative charges by care providers, seeks to determine whether particular services were properly attributed to the injuries caused by the 1997 accident not rendered for a reason unrelated to the accident. See Tr. of Oral Arg. 44, 53. The United States observes that a claim for reimbursement may also involve as an issue "[the] extent, if any, to which the reimbursement should take account of attorney's fees expended to obtain the tort recovery." Brief as Amicus Curiae 29. Indeed it may. But it is hardly apparent why a proper "federal-state balance," see would place such a nonstatutory issue under the complete governance of federal law, to be declared in a federal forum. The state court in which the personal-injury suit was lodged is competent to apply federal law, to the extent it is relevant, would seem best positioned to determine the lawyer's part in obtaining, his or her fair share in, the tort recovery. The United States no doubt "has an overwhelming interest in attracting able workers to the federal workforce," "in the health welfare of the federal workers upon whom it relies to carry out its functions." But those interests, we are persuaded, do not warrant turning into a discrete costly "federal case" an insurer's contract-derived claim to be reimbursed from the proceeds of a federal worker's state-court-initiated tort litigation. In sum, emphasized that it takes more than a federal element "to open the `arising under' door." This case cannot be squeezed into the slim category exemplifies. * * * For the reasons stated, the judgment of the Court of Appeals for the Second Circuit is Affirmed.

Justice Breyer

dissenting

Empire Healthchoice Assurance, Inc. v. McVeigh

2006-06-15

https://www.courtlistener.com/opinion/145643/empire-healthchoice-assurance-inc-v-mcveigh/

https://www.courtlistener.com/api/rest/v3/clusters/145643/

2005-068

This case involves a dispute about the meaning of terms in a federal health insurance contract. The contract, between a federal agency and a private carrier, sets forth the details of a federal health insurance program created by federal statute and covering 8 million federal employees. In all this the Court cannot find a basis for federal jurisdiction. I believe I can. See Clearfield Trust Co. v. United States, 318 U.S. 363 (1943). I A There is little about this case that is not federal. The comprehensive federal health insurance program at issue is created by a federal statute, the Federal Employees Health Benefits Act of 1959 (FEHBA), 5 U.S. C. § 8901 et seq. (2000 ed. and Supp. III). This program provides insurance for Federal Government employees and their families. That insurance program today covers approximately 8 million federal employees, retirees, and dependents, at a total cost to the Government of about $22 billion a year. Brief for United States as Amicus Curiae 2. To implement the statute, the Office of Personnel Management (OPM), the relevant federal agency, enters into contracts with a handful of major insurance carriers. These agency/carrier contracts follow a standard agency form of about 38,000 words, and contain the details of the plan offered by the carrier. See § 8902(d) (2000 ed.) (requiring contract between carrier and agency to contain a detailed statement of the terms of the plan); see also Federal Employees Health Benefits Program Standard Contract (CR—2003) (2005), online at http://www.opm.gov/insure/carriers/samplecontract.doc (sample form agency/carrier contract) (as visited June 7, 2006, and available in Clerk of Court's case file). The contract lists, for example, the benefits provided to the employees who enroll. It provides a patient's bill of *703 rights. It makes clear that the Government, not the carrier, will receive the premiums and will pay the benefits. It specifies that the carrier will administer the program that the contract sets forth, for which the carrier will receive an adjustable fee. The contract also states, "By enrolling or accepting services under this contract, [enrollees] are obligated to all terms, conditions, and provisions of this contract." App. 90. As the statute requires, § 8907(b), the agency/carrier contract also provides that the carrier will send each enrolled employee a brochure that explains the terms of the plan, as set forth in the contract. The brochure explains that it "describes the benefits of the . . . [p]lan under [the carrier's] contract . . . with [the federal agency], as authorized by the [federal statute]." Id., at 158. The terms of the brochure are incorporated into the agency/carrier contract. Id., at 89. The carrier distributes the brochure with a seal attached to the front stating, "Authorized for distribution by the United States Office of Personnel Management Retirement and Insurance Service." Id., at 155. The program is largely funded by the Federal Government. More specifically, the Federal Government pays about 75% of the plan premiums; the enrollee pays the rest. § 8906(b). These premiums are deposited into a special fund in the United States Treasury. § 8909(a). The carrier typically withdraws money from the fund to pay for covered health care services, ibid.; however, the fund's money belongs, not to the carrier, but to the federal agency that administers the program. After benefits are paid, any surplus in the fund can be used at the agency's discretion to reduce premiums, to increase plan benefits, or to make a refund to the Government and enrollees. § 8909(b); 5 CFR § 890.503(c)(2) (2005). The carrier is not at risk. Rather, it earns a profit, not from any difference between plan premiums and the cost of benefits, but from a negotiated service charge that the federal agency pays directly. *704 Federal regulations provide that the federal agency will resolve disputes about an enrolled employee's coverage. § 890.105(a)(1); see also 5 U.S. C. § 8902(j) (requiring carrier to provide health benefit if OPM concludes that enrollee is entitled to the benefit under the contract). The agency's resolution is judicially reviewable under the Administrative Procedure Act in federal court. 5 CFR § 890.107 (2005). In sum, the statute is federal, the program it creates is federal, the program's beneficiaries are federal employees working throughout the country, the Federal Government pays all relevant costs, and the Federal Government receives all relevant payments. The private carrier's only role in this scheme is to administer the health benefits plan for the federal agency in exchange for a fixed service charge. B The plan at issue here, the Blue Cross Blue Shield Service Benefit Plan, is the largest in the statutory program. The plan's details are contained in Blue Cross Blue Shield's contract with the federal agency and in the brochure, which binds the enrolled employee to that contract. In this case, the carrier seeks to require the enrolled employee's estate to abide by provisions that permit the carrier to obtain (and require the enrolled employee to pay) reimbursement from an enrollee for benefits provided if the enrollee recovers money from a third party (as compensation for the relevant injury or illness). The parties dispute the proper application of some of those provisions. First, the agency's contract with the carrier requires the carrier to "mak[e] a reasonable effort to seek recovery of amounts to which it is entitled to recover." App. 95. And the carrier must do so "under a single, nation-wide policy to ensure equitable and consistent treatment for all [enrollees] under this contract." Ibid. Any money recovered by the carrier goes into the statutory fund in the United States *705 Treasury, and may be spent for the benefit of the program at the discretion of the federal agency. See supra, at 703. Second, the agency/carrier contract and the brochure set forth the enrollee's obligation to reimburse the carrier under certain circumstances. The contract states, "The Carrier may . . . recover directly from the [enrollee] all amounts received by the [enrollee] by suit, settlement, or otherwise from any third party or its insurer . . . for benefits which have also been paid under this contract." App. 95. The agency/carrier contract also says that the "[c]arrier's subrogation rights, procedures and policies, including recovery rights, shall be in accordance with the provisions of the agreed-upon brochure text." Id., at 100. The relevant provisions in the brochure (which also appear in the appendix to the agency/carrier contract) tell the enrollee: "If another person or entity, through an act or omission, causes you to suffer an injury or illness, and if we pay benefits for that injury or illness, you must agree to the following: "All recoveries you obtain (whether by lawsuit, settlement, or otherwise), no matter how described or designated, must be used to reimburse us in full for benefits we paid. . . . "We will not reduce our share of any recovery unless we agree in writing to a reduction, . . . because you had to pay attorneys' fees." Id., at 165. The enrollee must abide by these requirements because, as explained above, the brochure tells the beneficiary that, by enrolling in the program, he or she is agreeing to the terms of the brochure, which in turn "describes the benefits of the [plan] under [the agency/carrier] contract." Id., at 158. II A I have explained the nature of the program and have set forth the terms of the agency/carrier contract in some detail *706 because, once understood, their federal nature brings this case well within the scope of the relevant federal jurisdictional statute, 28 U.S. C. § 1331, which provides jurisdiction for claims "arising under" federal law. For purposes of this statute, a claim arises under federal law if federal law creates the cause of action. Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 808 (1986); see also American Well Works Co. v. Layne & Bowler Co., 241 U.S. 257, 260 (1916) (opinion of Holmes, J.) (A "suit arises under the law that creates the cause of action"). And this Court has explained that § 1331's "statutory grant of `jurisdiction will support claims founded upon federal common law as well as those of a statutory origin.'" National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 850 (1985); see also Illinois v. Milwaukee, 406 U.S. 91 (1972); 19 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4514, p. 455 (2d ed. 1996) ("A case `arising under' federal common law presents a federal question and as such is within the original subject-matter jurisdiction of the federal courts"). In other words, "[f]ederal common law as articulated in rules that are fashioned by court decisions are `laws' as that term is used in § 1331." National Farmers, supra, at 850. It seems clear to me that the petitioner's claim arises under federal common law. The dispute concerns the application of terms in a federal contract. This Court has consistently held that "obligations to and rights of the United States under its contracts are governed exclusively by federal law." Boyle v. United Technologies Corp., 487 U.S. 500, 504 (1988). This principle dates back at least as far as Clearfield Trust, 318 U. S., at 366, where the Court held that the "rights and duties of the United States on [federal] commercial paper," namely a federal employee's paycheck, "are governed by federal rather than local law." The Court reasoned that "[w]hen the United States disburses its funds or *707 pays its debts, it is exercising a constitutional function or power," a power "in no way dependent on the laws of Pennsylvania or of any other state." Ibid. Accordingly, "[i]n [the] absence of an applicable Act of Congress it is for the federal courts to fashion the governing rule of law." Id., at 367. This Court has applied this principle, the principle embodied in Clearfield Trust, to Government contracts of all sorts. See, e. g., West Virginia v. United States, 479 U.S. 305, 308-309 (1987) (contract regarding federal disaster relief efforts); United States v. Kimbell Foods, Inc., 440 U.S. 715, 726 (1979) (contractual liens arising from federal loan programs); United States v. Little Lake Misere Land Co., 412 U.S. 580, 592 (1973) (agreements to acquire land under federal conservation program); United States v. Seckinger, 397 U.S. 203, 209 (1970) (Government construction contracts); United States v. County of Allegheny, 322 U.S. 174, 183 (1944) (Government procurement contracts). In this case, the words that provide the right to recover are contained in the brochure, which in turn explains the provisions of the contract between the Government and the carrier, provisions that were written by a federal agency acting pursuant to a federal statute that creates a federal benefit program for federal employees. At bottom, then, the petitioner's claim is based on the interpretation of a federal contract, and as such should be governed by federal common law. And because the petitioner's claim is based on federal common law, the federal courts have jurisdiction over it pursuant to § 1331. The lower federal courts have similarly found § 1331 jurisdiction over suits between private parties based on Federal Government contracts. See, e. g., Downey v. State Farm Fire & Casualty Co., 266 F.3d 675, 680-681 (CA7 2001) (Easterbrook, J.) (National Flood Insurance Program contracts); Almond v. Capital Properties, Inc., 212 F.3d 20, 22-24 (CA1 2000) (Boudin, J.) (Federal Railroad Administration *708 contract); Price v. Pierce, 823 F.2d 1114, 1119-1120 (CA7 1987) (Posner, J.) (Dept. of Housing and Urban Development contracts). B What might one say to the contrary? First, I may have made too absolute a statement in claiming that disputes arising under federal common law are (for jurisdictional purposes) cases "arising under" federal law. After all, in every Supreme Court case I have cited (except National Farmers and Milwaukee, and not including the Courts of Appeals cases), the United States was a party, and that fact provides an independent basis for jurisdiction. See 28 U.S. C. §§ 1345, 1346(a)(2), 1491(a)(1). In those cases the decision to apply federal common law was, therefore, a "choice-of-law issue" only, ante, at 691, and the Court consequently did not need to address the application of the Clearfield Trust doctrine to § 1331 "arising under" jurisdiction. But I have found no case where a federal court concluded that federal common law governed a plaintiff's contract claim but nevertheless decided that the claim did not arise under federal law. I have found several lower court cases (cited supra, at 707 and this page) where courts asserted § 1331 jurisdiction solely on the basis of federal common law. And in Machinists v. Central Airlines, Inc., 372 U.S. 682, 693, n. 17 (1963), this Court cited the Clearfield Trust cases in finding § 1331 jurisdiction over the contract suit before it, noting that although those cases "did not involve federal jurisdiction as such," nevertheless "they are suggestive" on the issue of § 1331 jurisdiction over suits involving Federal Government contracts "since they hold federal law determinative of the merits of the claim." It is enough here, however, to assume that federal common law means federal jurisdiction where Congress so intends. Cf. Clearfield Trust, supra, at 367 ("In absence of an applicable Act of Congress it is for the federal courts to fashion the governing rule of law according to their own standards" (emphasis added)). If so, there are strong reasons for the *709 federal courts, following Clearfield Trust, to assume jurisdiction and apply federal common law to resolve this case. First, although the nominal plaintiff in this case is the carrier, the real party in interest is the United States. Any funds that the petitioner recovers here it must pay directly to the United States, by depositing those funds in the FEHBA United States Treasury account managed by the federal agency. The carrier simply administers the reimbursement proceeding for the United States, just as it administers the rest of the agency/carrier contract. Accordingly, this case, just like the Clearfield Trust cases, concerns the "rights of the United States under its contracts." Boyle, 487 U. S., at 504. Second, the health insurance system FEHBA establishes is a federal program. The Federal Government pays for the benefits, receives the premiums, and resolves disputes over claims for medical services. Given this role, the Federal Government's need for uniform interpretation of the contract is great. Given the spread of Government employees throughout the Nation and the unfairness of treating similar employees differently, the employees' need for uniform interpretation is equally great. That interest in uniformity calls for application of federal common law to disputes about the meaning of the words in the agency/carrier contract and brochure. See Clearfield Trust, 318 U. S., at 367 (applying federal common law because the "desirability of a uniform [federal] rule is plain"); see also Bank of America Nat. Trust & Sav. Assn. v. Parnell, 352 U.S. 29, 33, 34 (1956) ("[L]itigation with respect to Government paper. . . between private parties" may nevertheless "be governed by federal [common] law" where there is "the presence of a federal interest"). And that interest in uniformity also suggests that the doors of the federal courts should be open to decide such disputes. Third, as discussed above, the provisions at issue here are just a few scattered islands in a sea of federal contractual provisions, all of which federal courts will interpret and *710 apply (when reviewing the federal agency's resolution of disputes regarding benefits). Given this context, why would Congress have wanted the courts to treat those islands any differently? I can find no convincing answer. Regardless, the majority and the Court of Appeals believe they have come up with one possible indication of a contrary congressional intent. They believe that the statute's jurisdictional provision argues against federal jurisdiction where the United States is not formally a party. That provision gives the federal district courts "original jurisdiction, concurrent with the United States Court of Federal Claims, of a civil action or claim against the United States founded on this chapter." 5 U.S. C. § 8912. According to the majority, if Congress had wanted cases like this one to be brought in the federal courts, it would have extended § 8912 to cover them. Ante, at 696. That is not so. Congress' failure to write § 8912 to include suits between carriers and enrollees over plan provisions may reflect inadvertence. Or it may reflect a belief that § 1331 covered such cases regardless. Either way, § 8912 tells us nothing about Congress' intent in respect to § 1331 jurisdiction. But why then did Congress write § 8912 at all? After all, the cases there covered—contract claims against the Federal Government "founded on" the federal health insurance program—would also be governed by federal common law and (if my view is correct) would have fallen within the scope of § 1331. What need would there have been (if my view is correct) to write a special section, § 8912, expanding federal jurisdiction to encompass these claims? The answer, as the majority itself points out, ante, at 686, is that Congress did not write § 8912 to expand the jurisdiction of the federal courts. It wrote that section to transfer a category of suits (claims against the United States exceeding $10,000) from one federal court (the Court of Federal Claims) to others (the federal district courts). *711 In sum, given Clearfield Trust, supra, and its progeny, there is every reason to believe that federal common law governs disputes concerning the agency/carrier contract. And that is so even though "it would have been easy enough for Congress to say" that federal common law should govern these claims. See ante, at 696. After all, no such express statement of congressional intent was present in Clearfield Trust itself, or in any of the cases relying on Clearfield Trust for the authority to apply federal common law to interpret Government contracts. See, e. g., cases cited supra, at 707; see also Clearfield Trust, supra, at 367 ("In absence of an applicable Act of Congress it is for the federal courts to fashion the governing rule of law according to their own standards"). Accordingly, I would apply federal common law to resolve the petitioner's contract claim. And, as explained above, when the "governing rule of law" on which a claim is based is federal common law, then the federal courts have jurisdiction over that claim under § 1331. C The Court adds that, in spite of the pervasively federal character of this dispute, state law should govern it because the petitioner has not demonstrated a "`significant conflict. . . between an identifiable federal policy or interest and the operation of state law.'" Ante, at 693. But as I have explained, see supra, at 708-709, the Federal Government has two such interests: (1) the uniform operation of a federal employee health insurance program, and (2) obtaining reimbursement under a uniform set of legal rules. These interests are undermined if the amount a federal employee has to reimburse the FEHBA United States Treasury fund in cases like this one varies from State to State in accordance with state contract law. We have in the past recognized that this sort of interest in uniformity is sufficient to warrant application of federal common law. See, e. g., Boyle, supra, at 508 ("[W]here the federal interest requires a uniform rule, *712 the entire body of state law applicable to the area conflicts and is replaced by federal rules"); Kimbell Foods, 440 U. S., at 728 ("Undoubtedly, federal programs that `by their nature are and must be uniform in character throughout the Nation' necessitate formulation of controlling federal rules"); Clearfield Trust, 318 U. S., at 367 (applying federal common law because "application of state law . . . would subject the rights and duties of the United States to exceptional uncertainty" and "would lead to great diversity in results by making identical transactions subject to the vagaries of the laws of the several states," and therefore "[t]he desirability of a uniform rule is plain"). But even if the Court is correct that "`[t]he prudent course'" is "`to adopt the readymade body of state law as the federal rule of decision until Congress strikes a different accommodation,'" ante, at 691-692 (quoting Kimbell Foods, supra, at 740), there would still be federal jurisdiction over this case. That is because, as Clearfield Trust, Kimbell Foods, and other cases make clear, the decision to apply state law "as the federal rule of decision" is itself a matter of federal common law. See, e. g., Kimbell Foods, supra, at 728, n. 21 ("`Whether state law is to be incorporated as a matter of federal common law . . . involves the . . . problem of the relationship of a particular issue to a going federal program'" (emphasis added)); Clearfield Trust, supra, at 367 ("In our choice of the applicable federal rule we have occasionally selected state law" (emphasis added)); see also R. Fallon, D. Meltzer, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 700 (5th ed. 2003) ("[T]he current approach, as reflected in [Kimbell Foods, supra], suggests that . . . while under Clearfield federal common law governs, in general it will incorporate state law as the rule of decision"); 19 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure § 4518, at 572-573 ("In recent years, the Supreme Court has put increasing emphasis on the notion that when determining what should be the content *713 of federal common law, the law of the forum state should be adopted absent some good reason to displace it" (emphasis added; citing Kimbell Foods, supra, and Clearfield Trust, supra)). On this view, the Clearfield Trust inquiry involves two questions: (1) whether federal common law governs the plaintiff's claim; (2) if so, whether, as a matter of federal common law, the Court should adopt state law as the proper "`federal rule of decision,'" ante, at 692 (emphasis added). See, e. g., Kimbell Foods, supra, at 727 (deciding that "[f]ederal law therefore controls" the dispute but concluding that state law gives "content to this federal rule"); United States v. Little Lake Misere Land Co., 412 U. S., at 593-594 (The "first step of the Clearfield analysis" is to decide whether "`the courts of the United States may formulate a rule of decision,'" and the "next step in our analysis is to determine whether" the federal rule of decision should "`borro[w]' state law"); see also Friendly, In Praise of Erie—and of the New Federal Common Law, 39 N. Y. U. L. Rev. 383, 410 (1964) ("Clearfield decided not one issue but two. The first . . . is that the right of the United States to recover for conversion of a Government check is a federal right, so that the courts of the United States may formulate a rule of decision. The second . . . is whether, having this opportunity, the federal courts should adopt a uniform nation-wide rule or should follow state law" (footnote omitted)). Therefore, even if the Court is correct that state law applies to claims involving the interpretation of some provisions of this contract, the decision whether and when to apply state law should be made by the federal courts under federal common law. Accordingly, for jurisdictional purposes those claims must still arise under federal law, for federal common law determines the rule of decision. Finally, the footnote in Boyle cited by the Court did not purport to overrule Clearfield Trust on this point. See Boyle, 487 U. S., at 507, n. 3 ("If the distinction between displacement *714 of state law and displacement of federal law's incorporation of state law ever makes a practical difference, it at least does not do so in the present case"). With respect, I dissent.

This case involves a dispute about the meaning of terms in a federal health insurance contract. The contract, between a federal agency and a private carrier, sets forth the details of a federal health insurance program created by federal statute and covering 8 million federal employees. In all this the Court cannot find a basis for federal jurisdiction. I believe I can. See Clearfield I A There is little about this case that is not federal. The comprehensive federal health insurance program at issue is created by a federal statute, the Federal Employees Health Benefits Act of 1959 (FEHBA), 5 U.S. C. 8901 et seq. ( ed. and Supp. III). This program provides insurance for Federal Government employees and their families. That insurance program today covers approximately 8 million federal employees, retirees, and dependents, at a total cost to the Government of about $22 billion a year. Brief for United States as Amicus Curiae 2. To implement the statute, the Office of Personnel Management (OPM), the relevant federal agency, enters into contracts with a handful of major insurance carriers. These agency/carrier contracts follow a standard agency form of about 38,000 words, and contain the details of the plan offered by the carrier. See 8902(d) ( ed.) (requiring contract between carrier and agency to contain a detailed statement of the terms of the plan); see also Federal Employees Health Benefits Program Standard Contract (CR—2003) (2005), online at http://www.opm.gov/insure/carriers/samplecontract.doc (sample form agency/carrier contract) (as visited June 7, 2006, and available in Clerk of Court's case file). The contract lists, for example, the benefits provided to the employees who enroll. It provides a patient's bill of *703 rights. It makes clear that the Government, not the carrier, will receive the premiums and will pay the benefits. It specifies that the carrier will administer the program that the contract sets forth, for which the carrier will receive an adjustable fee. The contract also states, "By enrolling or accepting services under this contract, [enrollees] are obligated to all terms, conditions, and provisions of this contract." App. 90. As the statute requires, 8907(b), the agency/carrier contract also provides that the carrier will send each enrolled employee a brochure that explains the terms of the plan, as set forth in the contract. The brochure explains that it "describes the benefits of the [p]lan under [the carrier's] contract with [the federal agency], as authorized by the [federal statute]." The terms of the brochure are incorporated into the agency/carrier contract. The carrier distributes the brochure with a seal attached to the front stating, "Authorized for distribution by the United States Office of Personnel Management Retirement and Insurance Service." The program is largely funded by the Federal Government. More specifically, the Federal Government pays about 75% of the plan premiums; the enrollee pays the rest. 8906(b). These premiums are deposited into a special fund in the United States Treasury. 8909(a). The carrier typically withdraws money from the fund to pay for covered health care services, ibid.; however, the fund's money belongs, not to the carrier, but to the federal agency that administers the program. After benefits are paid, any surplus in the fund can be used at the agency's discretion to reduce premiums, to increase plan benefits, or to make a refund to the Government and enrollees. 8909(b); 5 CFR 890.503(c)(2) (2005). The carrier is not at risk. Rather, it earns a profit, not from any difference between plan premiums and the cost of benefits, but from a negotiated service charge that the federal agency pays directly. *704 Federal regulations provide that the federal agency will resolve disputes about an enrolled employee's coverage. 890.105(a)(1); see also 5 U.S. C. 8902(j) (requiring carrier to provide health benefit if OPM concludes that enrollee is entitled to the benefit under the contract). The agency's resolution is judicially reviewable under the Administrative Procedure Act in federal court. 5 CFR 890.107 (2005). In sum, the statute is federal, the program it creates is federal, the program's beneficiaries are federal employees working throughout the country, the Federal Government pays all relevant costs, and the Federal Government receives all relevant payments. The private carrier's only role in this scheme is to administer the health benefits plan for the federal agency in exchange for a fixed service charge. B The plan at issue here, the Blue Cross Blue Shield Service Benefit Plan, is the largest in the statutory program. The plan's details are contained in Blue Cross Blue Shield's contract with the federal agency and in the brochure, which binds the enrolled employee to that contract. In this case, the carrier seeks to require the enrolled employee's estate to abide by provisions that permit the carrier to obtain (and require the enrolled employee to pay) reimbursement from an enrollee for benefits provided if the enrollee recovers money from a third party (as compensation for the relevant injury or illness). The parties dispute the proper application of some of those provisions. First, the agency's contract with the carrier requires the carrier to "mak[e] a reasonable effort to seek recovery of amounts to which it is entitled to recover." App. 95. And the carrier must do so "under a single, nation-wide policy to ensure equitable and consistent treatment for all [enrollees] under this contract." Any money recovered by the carrier goes into the statutory fund in the United States *705 Treasury, and may be spent for the benefit of the program at the discretion of the federal agency. See Second, the agency/carrier contract and the brochure set forth the enrollee's obligation to reimburse the carrier under certain circumstances. The contract states, "The Carrier may recover directly from the [enrollee] all amounts received by the [enrollee] by suit, settlement, or otherwise from any third party or its insurer for benefits which have also been paid under this contract." App. 95. The agency/carrier contract also says that the "[c]arrier's subrogation rights, procedures and policies, including recovery rights, shall be in accordance with the provisions of the agreed-upon brochure text." The relevant provisions in the brochure (which also appear in the appendix to the agency/carrier contract) tell the enrollee: "If another person or entity, through an act or omission, causes you to suffer an injury or illness, and if we pay benefits for that injury or illness, you must agree to the following: "All recoveries you obtain (whether by lawsuit, settlement, or otherwise), no matter how described or designated, must be used to reimburse us in full for benefits we paid. "We will not reduce our share of any recovery unless we agree in writing to a reduction, because you had to pay attorneys' fees." The enrollee must abide by these requirements because, as explained above, the brochure tells the beneficiary that, by enrolling in the program, he or she is agreeing to the terms of the brochure, which in turn "describes the benefits of the [plan] under [the agency/carrier] contract." II A I have explained the nature of the program and have set forth the terms of the agency/carrier contract in some detail *706 because, once understood, their federal nature brings this case well within the scope of the relevant federal jurisdictional statute, 28 U.S. C. 1331, which provides jurisdiction for claims "arising under" federal law. For purposes of this statute, a claim arises under federal law if federal law creates the cause of action. Merrell Dow Pharmaceuticals ; see also American Well Works (A "suit arises under the law that creates the cause of action"). And this Court has explained that 1331's "statutory grant of `jurisdiction will support claims founded upon federal common law as well as those of a statutory origin.'" National Union Ins. ; see also ; 19 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure 4514, p. 455 (2d ed. 1996) ("A case `arising under' federal common law presents a federal question and as such is within the original subject-matter jurisdiction of the federal courts"). In other words, "[f]ederal common law as articulated in rules that are fashioned by court decisions are `laws' as that term is used in 1331." National at It seems clear to me that the petitioner's claim arises under federal common law. The dispute concerns the application of terms in a federal contract. This Court has consistently held that "obligations to and rights of the United States under its contracts are governed exclusively by federal law." This principle dates back at least as far as Clearfield where the Court held that the "rights and duties of the United States on [federal] commercial paper," namely a federal employee's paycheck, "are governed by federal rather than local law." The Court reasoned that "[w]hen the United States disburses its funds or *707 pays its debts, it is exercising a constitutional function or power," a power "in no way dependent on the laws of Pennsylvania or of any other state." Accordingly, "[i]n [the] absence of an applicable Act of Congress it is for the federal courts to fashion the governing rule of law." This Court has applied this principle, the principle embodied in Clearfield to Government contracts of all sorts. See, e. g., West ; United ; United ; United ; United In this case, the words that provide the right to recover are contained in the brochure, which in turn explains the provisions of the contract between the Government and the carrier, provisions that were written by a federal agency acting pursuant to a federal statute that creates a federal benefit program for federal employees. At bottom, then, the petitioner's claim is based on the interpretation of a federal contract, and as such should be governed by federal common law. And because the petitioner's claim is based on federal common law, the federal courts have jurisdiction over it pursuant to 1331. The lower federal courts have similarly found 1331 jurisdiction over suits between private parties based on Federal Government contracts. See, e. g., (National Flood Insurance Program contracts); (Federal Railroad Administration *708 contract); (Dept. of Housing and Urban Development contracts). B What might one say to the contrary? First, I may have made too absolute a statement in claiming that disputes arising under federal common law are (for jurisdictional purposes) cases "arising under" federal law. After all, in every Supreme Court case I have (except National and Milwaukee, and not including the Courts of Appeals cases), the United States was a party, and that fact provides an independent basis for jurisdiction. See 28 U.S. C. 1345, 1346(a)(2), 1491(a)(1). In those cases the decision to apply federal common law was, therefore, a "choice-of-law issue" only, ante, at 691, and the Court consequently did not need to address the application of the Clearfield doctrine to 1331 "arising under" jurisdiction. But I have found no case where a federal court concluded that federal common law governed a plaintiff's contract claim but nevertheless decided that the claim did not arise under federal law. I have found several lower court cases ( and this page) where courts asserted 1331 jurisdiction solely on the basis of federal common law. And in this Court the Clearfield cases in finding 1331 jurisdiction over the contract suit before it, noting that although those cases "did not involve federal jurisdiction as such," nevertheless "they are suggestive" on the issue of 1331 jurisdiction over suits involving Federal Government contracts "since they hold federal law determinative of the merits of the claim." It is enough here, however, to assume that federal common law means federal jurisdiction where Congress so intends. Cf. Clearfield If so, there are strong reasons for the *709 federal courts, following Clearfield to assume jurisdiction and apply federal common law to resolve this case. First, although the nominal plaintiff in this case is the carrier, the real party in interest is the United States. Any funds that the petitioner recovers here it must pay directly to the United States, by depositing those funds in the FEHBA United States Treasury account managed by the federal agency. The carrier simply administers the reimbursement proceeding for the United States, just as it administers the rest of the agency/carrier contract. Accordingly, this case, just like the Clearfield cases, concerns the "rights of the United States under its contracts." 487 U. S., at Second, the health insurance system FEHBA establishes is a federal program. The Federal Government pays for the benefits, receives the premiums, and resolves disputes over claims for medical services. Given this role, the Federal Government's need for uniform interpretation of the contract is great. Given the spread of Government employees throughout the Nation and the unfairness of treating similar employees differently, the employees' need for uniform interpretation is equally great. That interest in uniformity calls for application of federal common law to disputes about the meaning of the words in the agency/carrier contract and brochure. See Clearfield 318 U. S., ; see also Bank of America Nat. & Sav. And that interest in uniformity also suggests that the doors of the federal courts should be open to decide such disputes. Third, as discussed above, the provisions at issue here are just a few scattered islands in a sea of federal contractual provisions, all of which federal courts will interpret and *710 apply (when reviewing the federal agency's resolution of disputes regarding benefits). Given this context, why would Congress have wanted the courts to treat those islands any differently? I can find no convincing answer. Regardless, the majority and the Court of Appeals believe they have come up with one possible indication of a contrary congressional intent. They believe that the statute's jurisdictional provision argues against federal jurisdiction where the United States is not formally a party. That provision gives the federal district courts "original jurisdiction, concurrent with the United States Court of Federal Claims, of a civil action or claim against the United States founded on this chapter." 5 U.S. C. 8912. According to the majority, if Congress had wanted cases like this one to be brought in the federal courts, it would have extended 8912 to cover them. Ante, at 696. That is not so. Congress' failure to write 8912 to include suits between carriers and enrollees over plan provisions may reflect inadvertence. Or it may reflect a belief that 1331 covered such cases regardless. Either way, 8912 tells us nothing about Congress' intent in respect to 1331 jurisdiction. But why then did Congress write 8912 at all? After all, the cases there covered—contract claims against the Federal Government "founded on" the federal health insurance program—would also be governed by federal common law and (if my view is correct) would have fallen within the scope of 1331. What need would there have been (if my view is correct) to write a special section, 8912, expanding federal jurisdiction to encompass these claims? The answer, as the majority itself points out, ante, at 686, is that Congress did not write 8912 to expand the jurisdiction of the federal courts. It wrote that section to transfer a category of suits (claims against the United States exceeding $10,000) from one federal court (the Court of Federal Claims) to others (the federal district courts). *711 In sum, given Clearfield and its progeny, there is every reason to believe that federal common law governs disputes concerning the agency/carrier contract. And that is so even though "it would have been easy enough for Congress to say" that federal common law should govern these claims. See ante, at 696. After all, no such express statement of congressional intent was present in Clearfield itself, or in any of the cases relying on Clearfield for the authority to apply federal common law to interpret Government contracts. See, e. g., cases ; see also Clearfield Accordingly, I would apply federal common law to resolve the petitioner's contract claim. And, as explained above, when the "governing rule of law" on which a claim is based is federal common law, then the federal courts have jurisdiction over that claim under 1331. C The Court adds that, in spite of the pervasively federal character of this dispute, state law should govern it because the petitioner has not demonstrated a "`significant conflict. between an identifiable federal policy or interest and the operation of state law.'" Ante, at 693. But as I have explained, see the Federal Government has two such interests: (1) the uniform operation of a federal employee health insurance program, and (2) obtaining reimbursement under a uniform set of legal rules. These interests are undermined if the amount a federal employee has to reimburse the FEHBA United States Treasury fund in cases like this one varies from State to State in accordance with state contract law. We have in the past recognized that this sort of interest in uniformity is sufficient to warrant application of federal common law. See, e. g., ; Kimbell ; Clearfield 318 U. S., (applying federal common law because "application of state law would subject the rights and duties of the United States to exceptional uncertainty" and "would lead to great diversity in results by making identical transactions subject to the vagaries of the laws of the several states," and therefore "[t]he desirability of a uniform rule is plain"). But even if the Court is correct that "`[t]he prudent course'" is "`to adopt the readymade body of state law as the federal rule of decision until Congress strikes a different accommodation,'" ante, at 691-692 (quoting Kimbell ), there would still be federal jurisdiction over this case. That is because, as Clearfield Kimbell and other cases make clear, the decision to apply state law "as the federal rule of decision" is itself a matter of federal common law. See, e. g., Kimbell ; Clearfield ; see also R. Fallon, D. Meltzer, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 700 (5th ed. 2003) ("[T]he current approach, as reflected in [Kimbell suggests that while under Clearfield federal common law governs, in general it will incorporate state law as the rule of decision"); 19 C. Wright, A. Miller, & E. Cooper, Federal Practice and Procedure 4518, at 572-573 ("In recent years, the Supreme Court has put increasing emphasis on the notion that when determining what should be the content *713 of federal common law, the law of the forum state should be adopted absent some good reason to displace it" (emphasis added; citing Kimbell and Clearfield On this view, the Clearfield inquiry involves two questions: (1) whether federal common law governs the plaintiff's claim; (2) if so, whether, as a matter of federal common law, the Court should adopt state law as the proper "`federal rule of decision,'" ante, at 692 (emphasis added). See, e. g., Kimbell ; United -594 ; see also Friendly, In Praise of Erie—and of the New Federal Common Law, 39 N. Y. U. L. Rev. 383, 410 (1964) ("Clearfield decided not one issue but two. The first is that the right of the United States to recover for conversion of a Government check is a federal right, so that the courts of the United States may formulate a rule of decision. The second is whether, having this opportunity, the federal courts should adopt a uniform nation-wide rule or should follow state law" (footnote omitted)). Therefore, even if the Court is correct that state law applies to claims involving the interpretation of some provisions of this contract, the decision whether and when to apply state law should be made by the federal courts under federal common law. Accordingly, for jurisdictional purposes those claims must still arise under federal law, for federal common law determines the rule of decision. Finally, the footnote in by the Court did not purport to overrule Clearfield on this point. See n. 3 With respect, I dissent.

Justice Scalia

majority

Barnes v. Gorman

2002-06-17

https://www.courtlistener.com/opinion/121152/barnes-v-gorman/

https://www.courtlistener.com/api/rest/v3/clusters/121152/

2001-064

We must decide whether punitive damages may be awarded in a private cause of action brought under § 202 of the Americans with Disabilities Act of 1990 (ADA), 104 Stat. 337, 42 U.S. C. § 12132 (1994 ed.), and § 504 of the Rehabilitation Act of 1973, 87 Stat. 394, 29 U.S. C. § 794(a). I Respondent Jeffrey Gorman, a paraplegic, is confined to a wheelchair and lacks voluntary control over his lower torso, including his bladder, forcing him to wear a catheter attached to a urine bag around his waist. In May 1992, he was arrested for trespass after fighting with a bouncer at a Kansas City, Missouri, nightclub. While waiting for a police van to transport him to the station, he was denied permission to use a restroom to empty his urine bag. When the van arrived, it was not equipped to receive respondent's wheelchair. Over respondent's objection, the officers removed him from his wheelchair and used a seatbelt and his own belt to strap him to a narrow bench in the rear of the van. During the ride to the police station, respondent released his seatbelt, fearing it placed excessive pressure on his urine bag. Eventually, the other belt came loose and respondent fell to the floor, rupturing his urine bag and injuring his shoulder and back. The driver, the only officer in the van, finding it impossible to lift respondent, fastened him to a support for the remainder of the trip. Upon arriving *184 at the station, respondent was booked, processed, and released; later he was convicted of misdemeanor trespass. After these events, respondent suffered serious medical problems—including a bladder infection, serious lower back pain, and uncontrollable spasms in his paralyzed areas—that left him unable to work full time. Respondent brought suit against petitioners—members of the Kansas City Board of Police Commissioners, the chief of police, and the officer who drove the van—in the United States District Court for the Western District of Missouri. The suit claimed petitioners had discriminated against respondent on the basis of his disability, in violation of § 202 of the ADA and § 504 of the Rehabilitation Act, by failing to maintain appropriate policies for the arrest and transportation of persons with spinal cord injuries. A jury found petitioners liable and awarded over $1 million in compensatory damages and $1.2 million in punitive damages. The District Court vacated the punitive damages award, holding that punitive damages are unavailable in suits under § 202 of the ADA and § 504 of the Rehabilitation Act. The Court of Appeals for the Eighth Circuit reversed, relying on this Court's decision in Franklin v. Gwinnett County Public Schools, 503 U.S. 60, 70-71 (1992), which stated the "general rule" that "absent clear direction to the contrary by Congress, the federal courts have the power to award any appropriate relief in a cognizable cause of action brought pursuant to a federal statute." Punitive damages are appropriate relief, the Eighth Circuit held, because they are "an integral part of the common law tradition and the judicial arsenal," 257 F.3d 738, 745 (2001), and Congress did nothing to disturb this tradition in enacting or amending the relevant statutes, id., at 747. We granted certiorari. 534 U.S. 1103 (2002). II Section 202 of the ADA prohibits discrimination against the disabled by public entities; § 504 of the Rehabilitation Act *185 prohibits discrimination against the disabled by recipients of federal funding, including private organizations, 29 U.S. C. § 794(b)(3). Both provisions are enforceable through private causes of action. Section 203 of the ADA declares that the "remedies, procedures, and rights set forth in [§ 505(a)(2) of the Rehabilitation Act] shall be the remedies, procedures, and rights this subchapter provides" for violations of § 202. 42 U.S. C. § 12133. Section 505(a)(2) of the Rehabilitation Act, in turn, declares that the "remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 . . . shall be available" for violations of § 504, as added, 92 Stat. 2983, 29 U.S. C. § 794a(a)(2). Thus, the remedies for violations of § 202 of the ADA and § 504 of the Rehabilitation Act are coextensive with the remedies available in a private cause of action brought under Title VI of the Civil Rights Act of 1964, 42 U.S. C. § 2000d et seq., which prohibits racial discrimination in federally funded programs and activities. Although Title VI does not mention a private right of action, our prior decisions have found an implied right of action, e. g., Cannon v. University of Chicago, 441 U.S. 677, 703 (1979), and Congress has acknowledged this right in amendments to the statute, leaving it "beyond dispute that private individuals may sue to enforce" Title VI, Alexander v. Sandoval, 532 U.S. 275, 280 (2001). It is less clear what remedies are available in such a suit. In Franklin, supra, at 73, we recognized "the traditional presumption in favor of any appropriate relief for violation of a federal right," and held that since this presumption applies to suits under Title IX of the Education Amendments of 1972, 20 U.S. C. §§ 1681— 1688, monetary damages were available. (Emphasis added.) And the Court has interpreted Title IX consistently with Title VI, see Cannon, supra, at 694-698. Franklin, however, did not describe the scope of "appropriate relief." We take up this question today. Title VI invokes Congress's power under the Spending Clause, U. S. Const., Art. I, § 8, cl. 1, to place conditions on *186 the grant of federal funds. See Davis v. Monroe County Bd. of Ed., 526 U.S. 629, 640 (1999) (Title IX). We have repeatedly characterized this statute and other Spending Clause legislation as "much in the nature of a contract: in return for federal funds, the [recipients] agree to comply with federally imposed conditions." Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 17 (1981) (emphasis added);[1] see also Davis, supra, at 640; Gebser v. Lago Vista Independent School Dist., 524 U.S. 274, 286 (1998); Guardians Assn. v. Civil Serv. Comm'n of New York City, 463 U.S. 582, 599 (1983) (opinion of White, J.); id., at 632-633 (Marshall, J., dissenting); Lau v. Nichols, 414 U.S. 563, 568— 569 (1974). Just as a valid contract requires offer and acceptance of its terms, "[t]he legitimacy of Congress' power to legislate under the spending power . . . rests on whether the [recipient] voluntarily and knowingly accepts the terms of the `contract.' . . . Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously." Pennhurst, supra, at 17; see also Davis, supra, at 640; Gebser, supra, at 287; Franklin, 503 U. S., at 74. Although we have been careful not to imply that all contract-law rules apply to Spending Clause legislation, see, e. g., Bennett v. Kentucky Dept. of Ed., 470 U.S. 656, 669 (1985) (Title I), we have regularly applied the contract-law analogy in cases defining the scope of conduct for which funding recipients may be held liable for money damages. Thus, *187 a recipient may be held liable to third-party beneficiaries for intentional conduct that violates the clear terms of the relevant statute, Davis, supra, at 642, but not for its failure to comply with vague language describing the objectives of the statute, Pennhurst, supra, at 24-25; and, if the statute implies that only violations brought to the attention of an official with power to correct them are actionable, not for conduct unknown to any such official, see Gebser, supra, at 290. We have also applied the contract-law analogy in finding a damages remedy available in private suits under Spending Clause legislation. Franklin, supra, at 74-75. The same analogy applies, we think, in determining the scope of damages remedies. We said as much in Gebser: "Title IX's contractual nature has implications for our construction of the scope of available remedies." 524 U.S., at 287. One of these implications, we believe, is that a remedy is "appropriate relief," Franklin, 503 U. S., at 73, only if the funding recipient is on notice that, by accepting federal funding, it exposes itself to liability of that nature. A funding recipient is generally on notice that it is subject not only to those remedies explicitly provided in the relevant legislation, but also to those remedies traditionally available in suits for breach of contract. Thus we have held that under Title IX, which contains no express remedies, a recipient of federal funds is nevertheless subject to suit for compensatory damages, id., at 76, and injunction, Cannon, supra, at 711-712, forms of relief traditionally available in suits for breach of contract. See, e. g., Restatement (Second) of Contracts § 357 (1981); 3 S. Williston, Law of Contracts §§ 1445-1450 (1920); J. Pomeroy, A Treatise on the Specific Performance of Contracts 1-5 (1879). Like Title IX, Title VI mentions no remedies—indeed, it fails to mention even a private right of action (hence this Court's decision finding an implied right of action in Cannon ). But punitive damages, unlike compensatory damages and injunction, are generally not available for breach of contract, see 3 E. Farnsworth, Contracts § 12.8, *188 pp. 192-201 (2d ed. 1998); Restatement (Second) of Contracts § 355; 1 T. Sedgwick, Measure of Damages § 370 (8th ed. 1891). Nor (if such an interpretive technique were available) could an implied punitive damages provision reasonably be found in Title VI. Some authorities say that reasonably implied contractual terms are those that the parties would have agreed to if they had adverted to the matters in question. See 2 Farnsworth, supra, § 7.16, at 335, and authorities cited. More recent commentary suggests that reasonably implied contractual terms are simply those that "compor[t] with community standards of fairness," Restatement (Second) of Contracts, supra, § 204, Comment d; see also 2 Farnsworth, supra, § 7.16, at 334-336. Neither approach would support the implication here of a remedy that is not normally available for contract actions and that is of indeterminate magnitude. We have acknowledged that compensatory damages alone "might well exceed a recipient's level of federal funding," Gebser, supra, at 290; punitive damages on top of that could well be disastrous. Not only is it doubtful that funding recipients would have agreed to exposure to such unorthodox and indeterminate liability; it is doubtful whether they would even have accepted the funding if punitive damages liability was a required condition. "Without doubt, the scope of potential damages liability is one of the most significant factors a school would consider in deciding whether to receive federal funds." Davis, supra, at 656 (Kennedy, J., dissenting). And for the same reason of unusual and disproportionate exposure, it can hardly be said that community standards of fairness support such an implication. In sum, it must be concluded that Title VI funding recipients have not, merely by accepting funds, implicitly consented to liability for punitive damages.[2] *189 Our conclusion is consistent with the "well settled" rule that "where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done." Bell v. Hood, 327 U.S. 678, 684 (1946); see also Franklin, supra, at 66. When a federal-funds recipient violates conditions of Spending Clause legislation, the wrong done is the failure to provide what the contractual obligation requires; and that wrong is "made good" when the recipient compensates the Federal Government or a third-party beneficiary (as in this case) for the loss caused by that failure. See Guardians, 463 U. S., at 633 (Marshall, J., dissenting) ("When a court concludes that a recipient has breached its contract, it should enforce the broken promise by protecting the expectation that the recipient would not discriminate. . . . The obvious way to do this is to put private parties in as good a position as they would have been had the contract been performed"). Punitive damages are not compensatory, and are therefore not embraced within the rule described in Bell. * * * Because punitive damages may not be awarded in private suits brought under Title VI of the 1964 Civil Rights Act, it follows that they may not be awarded in suits brought under § 202 of the ADA and § 504 of the Rehabilitation Act.[3] This *190 makes it unnecessary to reach petitioners' alternative argument—neither raised nor passed on below[4]—invoking the traditional presumption against imposition of punitive damages on government entities. Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 784-785 (2000); Newport v. Fact Concerts, Inc., 453 U.S. 247, 262-263 (1981). The judgment of the Court of Appeals is reversed. It is so ordered.

We must decide whether punitive damages may be awarded in a private cause of action brought under 202 of the Americans with Disabilities Act of 1990 (ADA), 42 U.S. C. 12132 (1994 ed.), and 504 of the Rehabilitation Act of 1973, 29 U.S. C. 794(a). I Respondent Jeffrey Gorman, a paraplegic, is confined to a wheelchair and lacks voluntary control over his lower torso, including his bladder, forcing him to wear a catheter attached to a urine bag around his waist. In May 1992, he was arrested for trespass after fighting with a bouncer at a Kansas City, Missouri, nightclub. While waiting for a police van to transport him to the station, he was denied permission to use a restroom to empty his urine bag. When the van arrived, it was not equipped to receive respondent's wheelchair. Over respondent's objection, the officers removed him from his wheelchair and used a seatbelt and his own belt to strap him to a narrow bench in the rear of the van. During the ride to the police station, respondent released his seatbelt, fearing it placed excessive pressure on his urine bag. Eventually, the other belt came loose and respondent fell to the floor, rupturing his urine bag and injuring his shoulder and back. The driver, the only officer in the van, finding it impossible to lift respondent, fastened him to a support for the remainder of the trip. Upon arriving *184 at the station, respondent was booked, processed, and released; later he was convicted of misdemeanor trespass. After these events, respondent suffered serious medical problems—including a bladder infection, serious lower back pain, and uncontrollable spasms in his paralyzed areas—that left him unable to work full time. Respondent brought suit against petitioners—members of the Kansas City Board of Police Commissioners, the chief of police, and the officer who drove the van—in the United States District Court for the Western District of Missouri. The suit claimed petitioners had discriminated against respondent on the basis of his disability, in violation of 202 of the ADA and 504 of the Rehabilitation Act, by failing to maintain appropriate policies for the arrest and transportation of persons with spinal cord injuries. A jury found petitioners liable and awarded over $1 million in compensatory damages and $1.2 million in punitive damages. The District Court vacated the punitive damages award, holding that punitive damages are unavailable in suits under 202 of the ADA and 504 of the Rehabilitation Act. The Court of Appeals for the Eighth Circuit reversed, relying on this Court's decision in which stated the "general rule" that "absent clear direction to the contrary by Congress, the federal courts have the power to award any appropriate relief in a cognizable cause of action brought pursuant to a federal statute." Punitive damages are appropriate relief, the Eighth Circuit held, because they are "an integral part of the common law tradition and the judicial arsenal," and Congress did nothing to disturb this tradition in enacting or amending the relevant statutes, We granted certiorari. II Section 202 of the ADA prohibits discrimination against the disabled by public entities; 504 of the Rehabilitation Act *185 prohibits discrimination against the disabled by recipients of federal funding, including private organizations, 29 U.S. C. 794(b)(3). Both provisions are enforceable through private causes of action. Section 203 of the ADA declares that the "remedies, procedures, and rights set forth in [ 505(a)(2) of the Rehabilitation Act] shall be the remedies, procedures, and rights this subchapter provides" for violations of 202. 42 U.S. C. 12133. Section 505(a)(2) of the Rehabilitation Act, in turn, declares that the "remedies, procedures, and rights set forth in title VI of the Civil Rights Act of 1964 shall be available" for violations of 504, as added, 29 U.S. C. 794a(a)(2). Thus, the remedies for violations of 202 of the ADA and 504 of the Rehabilitation Act are coextensive with the remedies available in a private cause of action brought under Title VI of the Civil Rights Act of 1964, 42 U.S. C. 2000d et seq., which prohibits racial discrimination in federally funded programs and activities. Although Title VI does not mention a private right of action, our prior decisions have found an implied right of action, e. g., and Congress has acknowledged this right in amendments to the statute, leaving it "beyond dispute that private individuals may sue to enforce" Title VI, It is less clear what remedies are available in such a suit. In we recognized "the traditional presumption in favor of any appropriate relief for violation of a federal right," and held that since this presumption applies to suits under Title IX of the Education Amendments of 1972, 20 U.S. C. 1681— 1688, monetary damages were available. (Emphasis added.) And the Court has interpreted Title IX consistently with Title VI, see however, did not describe the scope of "appropriate relief." We take up this question today. Title VI invokes Congress's power under the Spending Clause, U. S. Const., Art. I, 8, cl. 1, to place conditions on *186 the grant of federal funds. See We have repeatedly characterized this statute and other Spending Clause legislation as "much in the nature of a contract: in return for federal funds, the [recipients] agree to comply with federally imposed conditions." State School and ;[1] see also at ; ; ; ; Just as a valid contract requires offer and acceptance of its terms, "[t]he legitimacy of Congress' power to legislate under the spending power rests on whether the [recipient] voluntarily and knowingly accepts the terms of the `contract.' Accordingly, if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously." at ; see also at ; ; Although we have been careful not to imply that all contract-law rules apply to Spending Clause legislation, see, e. g., we have regularly applied the contract-law analogy in cases defining the scope of conduct for which funding recipients may be held liable for money damages. Thus, *187 a recipient may be held liable to third-party beneficiaries for intentional conduct that violates the clear terms of the relevant statute, but not for its failure to comply with vague language describing the objectives of the statute, ; and, if the statute implies that only violations brought to the attention of an official with power to correct them are actionable, not for conduct unknown to any such official, see We have also applied the contract-law analogy in finding a damages remedy available in private suits under Spending Clause legislation. The same analogy applies, we think, in determining the scope of damages remedies. We said as much in : "Title IX's contractual nature has implications for our construction of the scope of available remedies." 524 U.S., One of these implications, we believe, is that a remedy is "appropriate relief," 503 U. S., only if the funding recipient is on notice that, by accepting federal funding, it exposes itself to liability of that nature. A funding recipient is generally on notice that it is subject not only to those remedies explicitly provided in the relevant legislation, but also to those remedies traditionally available in suits for breach of contract. Thus we have held that under Title IX, which contains no express remedies, a recipient of federal funds is nevertheless subject to suit for compensatory damages, and injunction, forms of relief traditionally available in suits for breach of contract. See, e. g., Restatement (Second) of 357 ; 3 S. Williston, Law of 1445-1450 (1920); J. Pomeroy, A Treatise on the Specific Performance of 1-5 (1879). Like Title IX, Title VI mentions no remedies—indeed, it fails to mention even a private right of action (hence this Court's decision finding an implied right of action in ). But punitive damages, unlike compensatory damages and injunction, are generally not available for breach of contract, see 3 E. 12.8, *188 pp. 192-201 ; Restatement (Second) of 355; 1 T. Sedgwick, Measure of Damages 370 (8th ed. 1891). Nor (if such an interpretive technique were available) could an implied punitive damages provision reasonably be found in Title VI. Some authorities say that reasonably implied contractual terms are those that the parties would have agreed to if they had adverted to the matters in question. See 2 7.16, at 335, and authorities cited. More recent commentary suggests that reasonably implied contractual terms are simply those that "compor[t] with community standards of fairness," Restatement (Second) of 204, Comment d; see also 2 7.16, at 334-336. Neither approach would support the implication here of a remedy that is not normally available for contract actions and that is of indeterminate magnitude. We have acknowledged that compensatory damages alone "might well exceed a recipient's level of federal funding," ; punitive damages on top of that could well be disastrous. Not only is it doubtful that funding recipients would have agreed to exposure to such unorthodox and indeterminate liability; it is doubtful whether they would even have accepted the funding if punitive damages liability was a required condition. "Without doubt, the scope of potential damages liability is one of the most significant factors a school would consider in deciding whether to receive federal funds." And for the same reason of unusual and disproportionate exposure, it can hardly be said that community standards of fairness support such an implication. In sum, it must be concluded that Title VI funding recipients have not, merely by accepting funds, implicitly consented to liability for punitive damages.[2] *189 Our conclusion is consistent with the "well settled" rule that "where legal rights have been invaded, and a federal statute provides for a general right to sue for such invasion, federal courts may use any available remedy to make good the wrong done." ; see also When a federal-funds recipient violates conditions of Spending Clause legislation, the wrong done is the failure to provide what the contractual obligation requires; and that wrong is "made good" when the recipient compensates the Federal Government or a third-party beneficiary (as in this case) for the loss caused by that failure. See ("When a court concludes that a recipient has breached its contract, it should enforce the broken promise by protecting the expectation that the recipient would not discriminate. The obvious way to do this is to put private parties in as good a position as they would have been had the contract been performed"). Punitive damages are not compensatory, and are therefore not embraced within the rule described in Bell. * * * Because punitive damages may not be awarded in private suits brought under Title VI of the 1964 Civil Rights Act, it follows that they may not be awarded in suits brought under 202 of the ADA and 504 of the Rehabilitation Act.[3] This *190 makes it unnecessary to reach petitioners' alternative argument—neither raised nor passed on below[4]—invoking the traditional presumption against imposition of punitive damages on government entities. Vermont Agency of Natural ; The judgment of the Court of Appeals is reversed. It is so ordered.

Justice Souter

concurring

Barnes v. Gorman

2002-06-17

https://www.courtlistener.com/opinion/121152/barnes-v-gorman/

https://www.courtlistener.com/api/rest/v3/clusters/121152/

2001-064

I join the Court's opinion because I agree that analogy to the common law of contract is appropriate in this instance, with the conclusion that punitive damages are not available under the statute. Punitive damages, as the Court points out, may range in orders of "indeterminate magnitude," *191 ante, at 188, untethered to compensable harm, and would thus pose a concern that recipients of federal funding could not reasonably have anticipated. I realize, however, and read the Court's opinion as acknowledging, that the contract-law analogy may fail to give such helpfully clear answers to other questions that may be raised by actions for private recovery under Spending Clause legislation, such as the proper measure of compensatory damages. Justice Stevens, with whom Justice Ginsburg and Justice Breyer join, concurring in the judgment. The judgment of the Court of Appeals might be reversed on any of three different theories: (1) as the Court held in Newport v. Fact Concerts, Inc., 453 U.S. 247 (1981), absent clear congressional intent to the contrary, municipalities are not subject to punitive damages; (2) an analysis of the text and legislative history of § 504 of Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990 (ADA) indicates that Congress did not intend to authorize a punitive damages remedy for violations of either statute;[1] or (3) applying reasoning akin to that used in Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981), that the remedies for violations of federal statutes enacted pursuant to Congress' spending power should be defined by the common law of contracts, third-party beneficiaries are not allowed to recover punitive damages. Petitioners did not rely on either the first or the third of those theories in either the District Court or the Court of Appeals. Nevertheless, because it presents the narrowest basis for resolving the case, I am convinced that it is an appropriate exercise of judicial restraint to decide the case *192 on the theory that petitioners are immune from punitive damages under Newport. There is, however, no justification for the Court's decision to reach out and decide the case on a broader ground that was not argued below. The Court's reliance on, and extension of, Pennhurst —a case that was not even cited in petitioners' briefs in the Court of Appeals— is particularly inappropriate. In Pennhurst we were faced with the question whether the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S. C. § 6010, had imposed affirmative obligations on participating States. Relying in part on the important distinction between statutory provisions that "simply prohibited certain kinds of state conduct" and those that "impose affirmative obligations on the States to fund certain services," 451 U.S., at 16-17, we first held that § 6010 was enacted pursuant to the Spending Clause. We then concluded that the "affirmative obligations" that the Court of Appeals had found in § 6010 could "hardly be considered a `condition' of the grant of federal funds." Id., at 23. "When Congress does impose affirmative obligations on the States, it usually makes a far more substantial contribution to defray costs. . . . It defies common sense, in short, to suppose that Congress implicitly imposed this massive obligation on participating States." Id., at 24. The case before us today involves a municipality's breach of a condition that simply prohibits certain discriminatory conduct. The prohibition is set forth in two statutes, one of which, Title II of the ADA, was not enacted pursuant to the Spending Clause. Our opinion in Pennhurst says nothing about the remedy that might be appropriate for such a breach. Nor do I believe that the rules of contract law on which the Court relies are necessarily relevant to the tortious conduct described in this record. Moreover, the Court's novel reliance on what has been, at most, a useful analogy to contract law has potentially far-reaching consequences that go well beyond the issues briefed and argued *193 in this case.[2] In light of the fact that the petitioners—in addition to most defendants sued for violations of Title II of the ADA and § 504 of the Rehabilitation Act of 1973—are clearly not subject to punitive damages pursuant to our holding in Newport, I see no reason to decide the case on the expansive basis asserted by the Court. Accordingly, I do not join the Court's opinion, although I do concur in its judgment in this case.

I join the Court's opinion because I agree that analogy to the common law of contract is appropriate in this instance, with the conclusion that punitive damages are not available under the statute. Punitive damages, as the Court points out, may range in orders of "indeterminate magnitude," *191 ante, at 188, untethered to compensable harm, and would thus pose a concern that recipients of federal funding could not reasonably have anticipated. I realize, however, and read the Court's opinion as acknowledging, that the contract-law analogy may fail to give such helpfully clear answers to other questions that may be raised by actions for private recovery under Spending Clause legislation, such as the proper measure of compensatory damages. Justice Stevens, with whom Justice Ginsburg and Justice Breyer join, concurring in the judgment. The judgment of the Court of Appeals might be reversed on any of three different theories: (1) as the Court held in absent clear congressional intent to the contrary, municipalities are not subject to punitive damages; (2) an analysis of the text and legislative history of 504 of Rehabilitation Act of 1973 and Title II of the Americans with Disabilities Act of 1990 (ADA) indicates that Congress did not intend to authorize a punitive damages remedy for violations of either statute;[1] or (3) applying reasoning akin to that used in Pennhurst State School and that the remedies for violations of federal statutes enacted pursuant to Congress' spending power should be defined by the common law of contracts, third-party beneficiaries are not allowed to recover punitive damages. Petitioners did not rely on either the first or the third of those theories in either the District Court or the Court of Appeals. Nevertheless, because it presents the narrowest basis for resolving the case, I am convinced that it is an appropriate exercise of judicial restraint to decide the case *192 on the theory that petitioners are immune from punitive damages under Newport. There is, however, no justification for the Court's decision to reach out and decide the case on a broader ground that was not argued below. The Court's reliance on, and extension of, Pennhurst —a case that was not even cited in petitioners' briefs in the Court of Appeals— is particularly inappropriate. In Pennhurst we were faced with the question whether the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S. C. 6010, had imposed affirmative obligations on participating States. Relying in part on the important distinction between statutory provisions that "simply prohibited certain kinds of state conduct" and those that "impose affirmative obligations on the States to fund certain services," -17, we first held that 6010 was enacted pursuant to the Spending Clause. We then concluded that the "affirmative obligations" that the Court of Appeals had found in 6010 could "hardly be considered a `condition' of the grant of federal funds." "When Congress does impose affirmative obligations on the States, it usually makes a far more substantial contribution to defray costs. It defies common sense, in short, to suppose that Congress implicitly imposed this massive obligation on participating States." The case before us today involves a municipality's breach of a condition that simply prohibits certain discriminatory conduct. The prohibition is set forth in two statutes, one of which, Title II of the ADA, was not enacted pursuant to the Spending Clause. Our opinion in Pennhurst says nothing about the remedy that might be appropriate for such a breach. Nor do I believe that the rules of contract law on which the Court relies are necessarily relevant to the tortious conduct described in this record. Moreover, the Court's novel reliance on what has been, at most, a useful analogy to contract law has potentially far-reaching consequences that go well beyond the issues briefed and argued *193 in this case.[2] In light of the fact that the petitioners—in addition to most defendants sued for violations of Title II of the ADA and 504 of the Rehabilitation Act of 1973—are clearly not subject to punitive damages pursuant to our holding in Newport, I see no reason to decide the case on the expansive basis asserted by the Court. Accordingly, I do not join the Court's opinion, although I do concur in its judgment in this case.

Justice Thomas

majority

Hardt v. Reliance Standard Life Ins. Co.

2010-05-24

https://www.courtlistener.com/opinion/146983/hardt-v-reliance-standard-life-ins-co/

https://www.courtlistener.com/api/rest/v3/clusters/146983/

2009-055

In most lawsuits seeking relief under the Employee Retirement Income Security Act of 1974 (ERISA), 88 Stat. 829, as amended, 29 U.S. C. §1001 et seq., “a reasonable attorney’s fee and costs” are available “to either party” at the court’s “discretion.” §1132(g)(1). The Court of Appeals for the Fourth Circuit has interpreted §1132(g)(1) to re quire that a fee claimant be a “prevailing party” before he may seek a fees award. We reject this interpretation as contrary to §1132(g)(1)’s plain text. We hold instead that a court “in its discretion” may award fees and costs “to either party,” ibid., as long as the fee claimant has achieved “some degree of success on the merits,” Ruckels haus v. Sierra Club, 463 U.S. 680, 694 (1983). I In 2000, while working as an executive assistant to the president of textile manufacturer Dan River, Inc., peti tioner Bridget Hardt began experiencing neck and shoul der pain. Her doctors eventually diagnosed her with carpal tunnel syndrome. Because surgeries on both her wrists failed to alleviate her pain, Hardt stopped working 2 HARDT v. RELIANCE STANDARD LIFE INS. CO. Opinion of the Court in January 2003. In August 2003, Hardt sought long-term disability benefits from Dan River’s Group Long-Term Disability Insurance Program Plan (Plan). Dan River administers the Plan, which is subject to ERISA, but respondent Reli ance Standard Life Insurance Company decides whether a claimant qualifies for benefits under the Plan and under writes any benefits awarded. Reliance provisionally ap proved Hardt’s claim, telling her that final approval hinged on her performance in a functional capacities evaluation intended to assess the impact of her carpal tunnel syndrome and neck pain on her ability to work. Hardt completed the functional capacities evaluation in October 2003. The evaluator summarized Hardt’s medical history, observed her resulting physical limitations, and ultimately found that Hardt could perform some amount of sedentary work. Based on this finding, Reliance con cluded that Hardt was not totally disabled within the meaning of the Plan and denied her claim for disability benefits. Hardt filed an administrative appeal. Reliance reversed itself in part, finding that Hardt was totally disabled from her regular occupation, and was therefore entitled to temporary disability benefits for 24 months. While her administrative appeal was pending, Hardt began experiencing new symptoms in her feet and calves, including tingling, pain, and numbness. One of her physi cians diagnosed her with small-fiber neuropathy, a condi tion that increased her pain and decreased her physical capabilities over the ensuing months. Hardt eventually applied to the Social Security Admini stration for disability benefits under the Social Security Act. Her application included questionnaires completed by two of her treating physicians, which described Hardt’s symptoms and stated the doctors’ conclusion that Hardt could not return to full gainful employment because of her neuropathy and other ailments. In February 2005, the Cite as: 560 U. S. ____ (2010) 3 Opinion of the Court Social Security Administration granted Hardt’s applica tion and awarded her disability benefits. About two months later, Reliance told Hardt that her Plan benefits would expire at the end of the 24-month period. Reliance explained that under the Plan’s terms, only individuals who are “totally disabled from all occupa tions” were eligible for benefits beyond that period, App. to Pet. for Cert. 36a, and adhered to its conclusion that, based on its review of Hardt’s records, Hardt was not “totally disabled” as defined by the Plan. Reliance also demanded that Hardt pay Reliance $14,913.23 to offset the disability benefits she had received from the Social Security Administration. (The Plan contains a provision coordinating benefits with Social Security payments.) Hardt paid Reliance the offset. Hardt then filed another administrative appeal. She gave Reliance all of her medical records, the question naires she had submitted to the Social Security Admini stration, and an updated questionnaire from one of her physicians. Reliance asked Hardt to supplement this material with another functional capacities evaluation. When Reliance referred Hardt for the updated evaluation, it did not ask the evaluator to review Hardt for neuro pathic pain, even though it knew that Hardt had been diagnosed with neuropathy after her first evaluation. Hardt appeared for the updated evaluation in December 2005, and appeared for another evaluation in January 2006. The evaluators deemed both evaluations invalid because Hardt’s efforts were “submaximal.” Id., at 37a. One evaluator recorded that Hardt “refused multiple tests . . . for fear of nausea/illness/further pain complaints.” Ibid. (internal quotation marks omitted). Lacking an updated functional capacities evaluation, Reliance hired a physician and a vocation rehabilitation counselor to help it resolve Hardt’s administrative appeal. The physician did not examine Hardt; instead, he re 4 HARDT v. RELIANCE STANDARD LIFE INS. CO. Opinion of the Court viewed some, but not all, of Hardt’s medical records. Based on that review, the physician produced a report in which he opined that Hardt’s health was expected to improve. His report, however, did not mention Hardt’s pain medications or the questionnaires that Hardt’s at tending physicians had completed as part of her applica tion for Social Security benefits. The vocational rehabili tation counselor, in turn, performed a labor market study (based on Hardt’s health in 2003) that identified eight employment opportunities suitable for Hardt. After re viewing the physician’s report, the labor market study, and the results of the 2003 functional capacities evalua tion, Reliance concluded that its decision to terminate Hardt’s benefits was correct. It advised Hardt of this decision in March 2006. After exhausting her administrative remedies, Hardt sued Reliance in the United States District Court for the Eastern District of Virginia. She alleged that Reliance violated ERISA by wrongfully denying her claim for long term disability benefits. See §1132(a)(1)(B). The parties filed cross-motions for summary judgment, both of which the District Court denied. The court first rejected Reliance’s request for summary judgment affirming the denial of benefits, finding that “Reliance’s decision to deny benefits was based on incom plete information.” App. to Pet. for Cert. 42a. Most prominently, none of the functional capacities evaluations to which Hardt had submitted had “assessed the impact of neuropathy and neuropathic pain on Ms. Hardt.” Ibid. In addition, the reviewing physician’s report “was itself incomplete”; the basis for the physician’s “medical conclu sions [wa]s extremely vague and conclusory,” ibid., and the physician had “failed to cite any medical evidence to support his conclusions,” id., at 43a, or “to address the treating physicians’ contradictory medical findings,” id., at 44a. The court also found that Reliance had “improperly Cite as: 560 U. S. ____ (2010) 5 Opinion of the Court rejected much of the evidence that Ms. Hardt submitted,” id., at 45a, and had “further ignored the substantial amount of pain medication Ms. Hardt’s treating physi cians had prescribed to her,” id., at 46a. Accordingly, the court thought it “clear that Reliance’s decision to deny Ms. Hardt long-term disability benefits was not based on substantial evidence.” Id., at 47a. The District Court then denied Hardt’s motion for sum mary judgment, which contended that Reliance’s decision to deny benefits was unreasonable as a matter of law. In so doing, however, the court found “compelling evidence” in the record that “Ms. Hardt [wa]s totally disabled due to her neuropathy.” Id., at 48a. Although it was “inclined to rule in Ms. Hardt’s favor,” the court concluded that “it would be unwise to take this step without first giving Reliance the chance to address the deficiencies in its ap proach.” Ibid. In the District Court’s view, a remand to Reliance was warranted because “[t]his case presents one of those scenarios where the plan administrator has failed to comply with the ERISA guidelines,” meaning “Ms. Hardt did not get the kind of review to which she was entitled under applicable law.” Ibid. Accordingly, the court instructed “Reliance to act on Ms. Hardt’s applica tion by adequately considering all the evidence” within 30 days; “[o]therwise,” it warned, “judgment will be issued in favor of Ms. Hardt.” Id., at 49a. Reliance did as instructed. After conducting that review, Reliance found Hardt eligible for long-term dis ability benefits and paid her $55,250 in accrued, past-due benefits. Hardt then moved for attorney’s fees and costs under §1132(g)(1). The District Court assessed her motion under the three-step framework that governed fee requests in ERISA cases under Circuit precedent. At step one of that framework, a district court asks whether the fee claimant is a “ ‘prevailing party.’ ” Id., at 15a–16a (quoting Martin 6 HARDT v. RELIANCE STANDARD LIFE INS. CO. Opinion of the Court v. Blue Cross & Blue Shield of Virginia, Inc., 115 F.3d 1201, 1210 (CA4 1997), and citing Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598, 603 (2001)). If the fee claimant qualifies as a prevailing party, the court proceeds to step two and “determin[es] whether an award of attor neys’ fees is appropriate” by examining “five factors.”1 App. to Pet. for Cert. 16a. Finally, if those five factors suggest that a fees award is appropriate, the court “must review the attorneys’ fees and costs requested and limit them to a reasonable amount.” Id., at 17a (citing Hensley v. Eckerhart, 461 U.S. 424, 433 (1983)). Applying that framework, the District Court granted Hardt’s motion. It first concluded that Hardt was a pre vailing party because the court’s remand order “sanctioned a material change in the legal relationship of the parties by ordering [Reliance] to conduct the type of review to which [Hardt] was entitled.” Id., at 22a. The court recog nized that the order did not “sanctio[n] a certain result on remand,” but found that it “quite clearly expressed the consequences to [Reliance] were it to fail to complete its reconsideration in an expeditious manner.” Id., at 19a. Accordingly, the remand order “signif[ied] that the court was displeased with the cursory review that [Reliance] had initially given to [Hardt’s] claim, but was inclined to reserve judgment and permit [Reliance] to conduct a proper review of all of the medical evidence.” Ibid. The —————— 1 These factors are: “ ‘(1) the degree of opposing parties’ culpability or bad faith; (2) ability of opposing parties to satisfy an award of attor neys’ fees; (3) whether an award of attorneys’ fees against the opposing parties would deter other persons acting under similar circumstances; (4) whether the parties requesting attorneys’ fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a signifi cant legal question regarding ERISA itself; and (5) the relative merits of the parties’ positions.’ ” App. to Pet. for Cert. 16a (quoting Quesin berry v. Life Ins. Co. of North Am., 987 F.2d 1017, 1029 (CA4 1993)). Cite as: 560 U. S. ____ (2010) 7 Opinion of the Court court next concluded that a fees award was appropriate under the five-factor test, see id., at 22a–25a, and awarded $39,149 in fees and costs, id., at 25a–30a. Reliance appealed the fees award, and the Court of Appeals vacated the District Court’s order. According to the Court of Appeals, Hardt failed to satisfy the step-one inquiry—i.e., she failed to establish that she was a “pre vailing party.” In reaching that conclusion, the Court of Appeals relied on this Court’s decision in Buckhannon, under which a fee claimant qualifies as a “prevailing party” only if he has obtained an “ ‘enforceable judgmen[t] on the merits’ ” or a “ ‘court-ordered consent decre[e].’ ” 336 Fed. Appx. 332, 335 (CA4 2009) (per curiam) (quoting 532 U.S., at 604). The Court of Appeals reasoned that be cause the remand order “did not require Reliance to award benefits to Hardt,” it did “not constitute an ‘enforceable judgment on the merits’ as Buckhannon requires,” thus precluding Hardt from establishing prevailing party status. 336 Fed. Appx., at 336 (brackets omitted). Hardt filed a petition for a writ of certiorari seeking review of two aspects of the Court of Appeals’ judgment. First, did the Court of Appeals correctly conclude that §1132(g)(1) permits courts to award attorney’s fees only to a “prevailing party”?2 Second, did the Court of Appeals —————— 2 The Courts of Appeals are divided on this issue. Some (a few only tentatively) agree with the Court of Appeals’ conclusion here that only prevailing parties are entitled to fees under §1132(g)(1). See, e.g., Cottrill v. Sparrow, Johnson & Ursillo, Inc., 100 F.3d 220, 225 (CA1 1996) (“Congress declared that, in any ERISA claim advanced by a ‘participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney’s fee’ to the prevailing party” (emphasis added)); Tate v. Long Term Disability Plan for Salaried Employees of Champion Int’l Corp. #506, 545 F.3d 555, 564 (CA7 2008) (“In analyz ing whether attorney’s fees should be awarded to a ‘prevailing party’ in an ERISA case, a court should consider whether the losing party’s position was justified an taken in good faith. However, we have held that a claimant who is awarded a remand in an ERISA case generally 8 HARDT v. RELIANCE STANDARD LIFE INS. CO. Opinion of the Court correctly identify the circumstances under which a fee claimant is entitled to attorney’s fees under §1132(g)(1)? We granted certiorari. 558 U. S. ___ (2010). II Whether §1132(g)(1) limits the availability of attorney’s fees to a “prevailing party” is a question of statutory con struction. As in all such cases, we begin by analyzing the statutory language, “assum[ing] that the ordinary mean ing of that language accurately expresses the legislative purpose.” Gross v. FBL Financial Services, Inc., 557 U. S. ___, ___ (2009) (slip op., at 7) (internal quotation marks omitted). We must enforce plain and unambiguous statu tory language according to its terms. Carcieri v. Salazar, 555 U. S. ___, ___ (2009) (slip op., at 7); Jimenez v. Quar terman, 555 U. S. ___, ___ (2009) (slip op., at 5). Section 1132(g)(1) provides: “In any action under this subchapter (other than an action described in paragraph (2)) by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney’s fee and costs of ac tion to either party.” The words “prevailing party” do not appear in this provi sion. Nor does anything else in §1132(g)(1)’s text purport to limit the availability of attorney’s fees to a “prevailing party.” Instead, §1132(g)(1) expressly grants district courts “discretion” to award attorney’s fees “to either —————— is not a prevailing party in the truest sense of the term” (some internal quotation marks and citation omitted)); Graham v. Hartford Life and Accident Ins. Co., 501 F.3d 1153, 1162 (CA10 2007) (“We also afford certain weight to prevailing party status, even though we acknowledge that the ERISA attorney’s fees provision is not expressly directed at prevailing parties”). Other Courts of Appeals have rejected or dis avowed that position. See, e.g., Miller v. United Welfare Fund, 72 F.3d 1066, 1074 (CA2 1995); Gibbs v. Gibbs, 210 F.3d 491, 503 (CA5 2000); Freeman v. Continental Ins. Co., 996 F.2d 1116, 1119 (CA11 1993). Cite as: 560 U. S. ____ (2010) 9 Opinion of the Court party.” (Emphasis added.) That language contrasts sharply with §1132(g)(2), which governs the availability of attorney’s fees in ERISA actions under §1145 (actions to recover delinquent employer contributions to a multiemployer plan). In such cases, only plaintiffs who obtain “a judgment in favor of the plan” may seek attorney’s fees. §1132(g)(2)(D). The contrast between these two paragraphs makes clear that Congress knows how to impose express limits on the availability of attorney’s fees in ERISA cases. Because Congress failed to include in §1132(g)(1) an express “prevailing party” limit on the availability of attorney’s fees, the Court of Appeals’ decision adding that term of art to a fee-shifting statute from which it is conspicuously absent more closely resembles “invent[ing] a statute rather than interpret[ing] one.” Pasquantino v. United States, 544 U.S. 349, 359 (2005) (internal quotation marks omitted). We see no reason to dwell any longer on this question, particularly given Reliance’s concessions. See Brief for Respondent 9–10 (“On its face,” §1132(g)(1) “does not expressly demand, like so many statutes, that a claimant be a ‘prevailing party’ before receiving attorney’s fees”). We therefore hold that a fee claimant need not be a “pre vailing party” to be eligible for an attorney’s fees award under §1132(g)(1). III We next consider the circumstances under which a court may award attorney’s fees pursuant to §1132(g)(1). “Our basic point of reference” when considering the award of attorney’s fees is the bedrock principle known as the “ ‘American Rule’ ”: Each litigant pays his own attorney’s fees, win or lose, unless a statute or contract provides otherwise. Ruckelshaus, 463 U.S., at 683; see id., at 683– 686; Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247 (1975); Buckhannon, supra, at 602–603; 10 HARDT v. RELIANCE STANDARD LIFE INS. CO. Opinion of the Court see also Perdue v. Kenny A., 559 U. S. ___, ___ (2010) (slip op., at 5). Statutory changes to this rule take various forms. Most fee-shifting provisions permit a court to award attorney’s fees only to a “prevailing party.” 3 Others permit a “substantially prevailing” party 4 or a “successful” litigant 5 to obtain fees. Still others authorize district courts to award attorney’s fees where “appropriate,” 6 or simply vest district courts with “discretion” to award fees.7 Of those statutory deviations from the American Rule, we have most often considered statutes containing an express “prevailing party” requirement. See, e.g., Texas State Teachers Assn. v. Garland Independent School Dist., 489 U.S. 782, 792–793 (1989); Farrar v. Hobby, 506 U.S. 103, 109–114 (1992); Buckhannon, supra, at 602–606; Sole v. Wyner, 551 U.S. 74, 82–86 (2007). Our “prevailing party” precedents, however, do not govern the availability of fees awards under §1132(g)(1), because this provision does not limit the availability of attorney’s fees to the “prevailing party.” Supra, at 8–9; see also Gross, supra, at ___, (slip op., at 6) (cautioning courts “conducting statu tory interpretation . . . ‘not to apply rules applicable under one statute to a different statute without careful and critical examination’ ” (quoting Federal Express Corp. v. Holowecki, 552 U.S. 389, 393 (2008))). Instead, we interpret §1132(g)(1) in light of our prece dents addressing statutory deviations from the American Rule that do not limit attorney’s fees awards to the “pre —————— 3 See, e.g., Buckhannon Board & Care Home, Inc. v. West Virginia Dept. of Health and Human Resources, 532 U.S. 598, 601–603 (2001) (citing examples); Ruckelshaus v. Sierra Club, 463 U.S. 680, 684, n. 3 (1983) (same). 4 See ibid., n. 4 (citing examples). 5 See, e.g., 18 U.S. C. §2707(c); Ruckelshaus, supra, at 684, n. 5 (cit ing examples). 6 See Ruckelshaus, supra, at 682, n. 1 (citing examples). 7 See, e.g., 15 U.S. C. §§77k(e), 77www(a), 78i(e), 78r(a), 7706(g)(4); 20 U.S. C. §1415(i)(3)(B)(i); 42 U.S. C. §2000aa–6(f). Cite as: 560 U. S. ____ (2010) 11 Opinion of the Court vailing party.” In that line of precedents, Ruckelshaus is the principal case. There, the Court interpreted §307(f) of the Clean Air Act, which authorizes a court to award fees “whenever it determines that such an award is appropri ate.” 42 U.S. C. §7607(f). We began by noting that be cause nothing in §307(f)’s text “clear[ly] show[ed]” that Congress meant to abandon the American Rule, 463 U.S., at 685, fee claimants must have achieved some litigating success to be eligible for a fees award under that section, id., at 686. We then concluded that by using the less stringent “whenever . . . appropriate” standard instead of the traditional “prevailing party” standard, Congress had “expand[ed] the class of parties eligible for fees awards from prevailing parties to partially prevailing parties— parties achieving some success, even if not major success.” Id., at 688. We thus held “that, absent some degree of success on the merits by the claimant, it is not ‘appropri ate’ for a federal court to award attorney’s fees under §307(f).” Id., at 694. Applying the interpretive approach we employed in Ruckelshaus to §1132(g)(1), we first look to “the language of the section,” id., at 682, which unambiguously allows a court to award attorney’s fees “in its discretion . . . to either party,” §1132(g)(1). Statutes vesting judges with such broad discretion are well known in the law, particu larly in the attorney’s fees context. See, e.g., n. 7, supra; see also Perdue, 559 U. S., at ___ (slip op., at 14). Equally well known, however, is the fact that a “judge’s discretion is not unlimited.” Ibid. Consistent with Cir cuit precedent, the District Court applied five factors to guide its discretion in deciding whether to award attor ney’s fees under §1132(g)(1). See supra, at 6, and n. 1. Because these five factors bear no obvious relation to §1132(g)(1)’s text or to our fee-shifting jurisprudence, they are not required for channeling a court’s discretion when awarding fees under this section. 12 HARDT v. RELIANCE STANDARD LIFE INS. CO. Opinion of the Court Instead, Ruckelshaus lays down the proper markers to guide a court in exercising the discretion that §1132(g)(1) grants. As in the statute at issue in Ruckelshaus, Con gress failed to indicate clearly in §1132(g)(1) that it “meant to abandon historic fee-shifting principles and intuitive notions of fairness.” 463 U.S., at 686. Accord ingly, a fees claimant must show “some degree of success on the merits” before a court may award attorney’s fees under §1132(g)(1), id., at 694. A claimant does not satisfy that requirement by achieving “trivial success on the merits” or a “purely procedural victor[y],” but does satisfy it if the court can fairly call the outcome of the litigation some success on the merits without conducting a “lengthy inquir[y] into the question whether a particular party’s success was ‘substantial’ or occurred on a ‘central issue.’ ” Id., at 688, n. 9.8 Reliance essentially agrees that this standard should govern fee requests under §1132(g)(1), see Brief for Re spondent 13–31, but argues that Hardt has not satisfied it. Specifically, Reliance contends that a court order remand ing an ERISA claim for further consideration can never constitute “some success on the merits,” even if such a remand results in an award of benefits. See id., at 34–50. Reliance’s argument misses the point, given the facts of this case. Hardt persuaded the District Court to find that “the plan administrator has failed to comply with the ERISA guidelines” and “that Ms. Hardt did not get the kind of review to which she was entitled under applicable law.” App. to Pet. for Cert. 48a; see 29 U.S. C. §1133(2), 29 CFR §2560.503–1(h) (2009). Although Hardt failed to win summary judgment on her benefits claim, the District —————— 8 We do not foreclose the possibility that once a claimant has satisfied this requirement, and thus becomes eligible for a fees award under §1132(g)(1), a court may consider the five factors adopted by the Court of Appeals, see n. 1, supra, in deciding whether to award attorney’s fees. Cite as: 560 U. S. ____ (2010) 13 Opinion of the Court Court nevertheless found “compelling evidence that Ms. Hardt is totally disabled due to her neuropathy,” and stated that it was “inclined to rule in Ms. Hardt’s favor” on her benefits claim, but declined to do so before “first giving Reliance the chance to address the deficiencies in its” statutorily mandated “full and fair review” of that claim. App. to Pet. for Cert. 48a; 29 U.S. C. §1133(2). Hardt thus obtained a judicial order instructing Reliance “to act on Ms. Hardt’s application by adequately considering all the evidence” within 30 days; “[o]therwise, judgment will be issued in favor of Ms. Hardt.” App. to Pet. for Cert. 49a. After Reliance conducted that court-ordered review, and consistent with the District Court’s appraisal, Reli ance reversed its decision and awarded Hardt the benefits she sought. App. 120a–123a. These facts establish that Hardt has achieved far more than “trivial success on the merits” or a “purely procedural victory.” Accordingly, she has achieved “some success on the merits,” and the District Court properly exercised its discretion to award Hardt attorney’s fees in this case. Because these conclusions resolve this case, we need not decide today whether a remand order, without more, constitutes “some success on the merits” sufficient to make a party eligible for attorney’s fees under §1132(g)(1).9 * * * We reverse the judgment of the Court of Appeals for the Fourth Circuit and remand this case for proceedings con sistent with this opinion. It is so ordered. —————— 9 Reliance has not preserved any separate objection to the reason ableness of the amount of fees awarded. See Perdue v. Kenny A., 559 U. S. ___, ___ (2010) (slip op., at 7–8, 14). Cite as: 560 U. S. ____ (2010) 1 Opinion of STEVENS, J. SUPREME COURT OF THE UNITED STATES _________________ No. 09–448 _________________ BRIDGET HARDT, PETITIONER v. RELIANCE STANDARD LIFE INSURANCE COMPANY ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT [May 24, 2010] JUSTICE STEVENS, concurring in part and concurring in the judgment. While I join the Court’s judgment and Parts I and II of its opinion, I do not believe that our mistaken interpreta tion of §307(f) of the Clean Air Act in Ruckelshaus v. Si erra Club, 463 U.S. 680 (1983), should be given any spe cial weight in the interpretation of this—or any other— different statutory provision. The outcome in that closely divided case turned, to a significant extent, on a judgment about how to read the legislative history of the provision in question. Compare id., at 686–693, with id., at 703–706 (STEVENS, J., dissenting). I agree with the Court in this case that 29 U.S. C. §1132(g)(1) does not impose a “pre vailing party” requirement; I agree, further, that the District Court acted well within its discretion in awarding attorney’s fees to this petitioner. But I would examine the text, structure, and history of any other federal statute authorizing an award of fees before concluding that Con gress intended the same approach under that statute as under this one

In most lawsuits seeking relief under the Employee Retirement Income Security Act of 94 (ERISA), 88 Stat. 829, as amended, 29 U.S. C. et seq., “a reasonable attorney’s fee and costs” are available “to either party” at the court’s “discretion.” The Court of Appeals for the Fourth Circuit has interpreted to re quire that a fee claimant be a “prevailing party” before he may seek a fees award. We reject this interpretation as contrary to ’s plain text. We hold instead that a court “in its discretion” may award fees and costs “to either party,” ib as long as the fee claimant has achieved “some degree of success on the merits,” Ruckels I In while working as an executive assistant to the president of textile manufacturer Dan River, Inc., peti tioner Bridget Hardt began experiencing neck and shoul der pain. Her doctors eventually diagnosed her with carpal tunnel syndrome. Because surgeries on both her wrists failed to alleviate her pain, Hardt stopped working 2 HARDT v. RELIANCE STANDARD LIFE INS. CO. Opinion of the Court in January 2003. In August 2003, Hardt sought long-term disability benefits from Dan River’s Group Long-Term Disability Insurance Program Plan (Plan). Dan River administers the Plan, which is subject to ERISA, but respondent Reli ance Standard Life Insurance Company decides whether a claimant qualifies for benefits under the Plan and under writes any benefits awarded. Reliance provisionally ap proved Hardt’s claim, telling her that final approval hinged on her performance in a functional capacities evaluation intended to assess the impact of her carpal tunnel syndrome and neck pain on her ability to work. Hardt completed the functional capacities evaluation in October 2003. The evaluator summarized Hardt’s medical history, observed her resulting physical limitations, and ultimately found that Hardt could perform some amount of sedentary work. Based on this finding, Reliance con cluded that Hardt was not totally disabled within the meaning of the Plan and denied her claim for disability benefits. Hardt filed an administrative appeal. Reliance reversed itself in part, finding that Hardt was totally disabled from her regular occupation, and was therefore entitled to temporary disability benefits for 24 months. While her administrative appeal was pending, Hardt began experiencing new symptoms in her feet and calves, including tingling, pain, and numbness. One of her physi cians diagnosed her with small-fiber neuropathy, a condi tion that increased her pain and decreased her physical capabilities over the ensuing months. Hardt eventually applied to the Social Security Admini stration for disability benefits under the Social Security Act. Her application included questionnaires completed by two of her treating physicians, which described Hardt’s symptoms and stated the doctors’ conclusion that Hardt could not return to full gainful employment because of her neuropathy and other ailments. In February 2005, the Cite as: 560 U. S. (200) 3 Opinion of the Court Social Security Administration granted Hardt’s applica tion and awarded her disability benefits. About two months later, Reliance told Hardt that her Plan benefits would expire at the end of the 24-month period. Reliance explained that under the Plan’s terms, only individuals who are “totally disabled from all occupa tions” were eligible for benefits beyond that period, App. to Pet. for Cert. 36a, and adhered to its conclusion that, based on its review of Hardt’s records, Hardt was not “totally disabled” as defined by the Plan. Reliance also demanded that Hardt pay Reliance $4,93.23 to offset the disability benefits she had received from the Social Security Administration. (The Plan contains a provision coordinating benefits with Social Security payments.) Hardt paid Reliance the offset. Hardt then filed another administrative appeal. She gave Reliance all of her medical records, the question naires she had submitted to the Social Security Admini stration, and an updated questionnaire from one of her physicians. Reliance asked Hardt to supplement this material with another functional capacities evaluation. When Reliance referred Hardt for the updated evaluation, it did not ask the evaluator to review Hardt for neuro pathic pain, even though it knew that Hardt had been diagnosed with neuropathy after her first evaluation. Hardt appeared for the updated evaluation in December 2005, and appeared for another evaluation in January 2006. The evaluators deemed both evaluations invalid because Hardt’s efforts were “submaximal.” at 3a. One evaluator recorded that Hardt “refused multiple tests for fear of nausea/illness/further pain complaints.” Lacking an updated functional capacities evaluation, Reliance hired a physician and a vocation rehabilitation counselor to help it resolve Hardt’s administrative appeal. The physician did not examine Hardt; instead, he re 4 HARDT v. RELIANCE STANDARD LIFE INS. CO. Opinion of the Court viewed some, but not all, of Hardt’s medical records. Based on that review, the physician produced a report in which he opined that Hardt’s health was expected to improve. His report, however, did not mention Hardt’s pain medications or the questionnaires that Hardt’s at tending physicians had completed as part of her applica tion for Social Security benefits. The vocational rehabili tation counselor, in turn, performed a labor market study (based on Hardt’s health in 2003) that identified eight employment opportunities suitable for Hardt. After re viewing the physician’s report, the labor market study, and the results of the 2003 functional capacities evalua tion, Reliance concluded that its decision to terminate Hardt’s benefits was correct. It advised Hardt of this decision in March 2006. After exhausting her administrative remedies, Hardt sued Reliance in the United States District Court for the Eastern District of Virginia. She alleged that Reliance violated ERISA by wrongfully denying her claim for long term disability benefits. See The parties filed cross-motions for summary judgment, both of which the District Court denied. The court first rejected Reliance’s request for summary judgment affirming the denial of benefits, finding that “Reliance’s decision to deny benefits was based on incom plete information.” App. to Pet. for Cert. 42a. Most prominently, none of the functional capacities evaluations to which Hardt had submitted had “assessed the impact of neuropathy and neuropathic pain on Ms. Hardt.” In addition, the reviewing physician’s report “was itself incomplete”; the basis for the physician’s “medical conclu sions [wa]s extremely vague and conclusory,” ib and the physician had “failed to cite any medical evidence to support his conclusions,” at 43a, or “to address the treating physicians’ contradictory medical findings,” at 44a. The court also found that Reliance had “improperly Cite as: 560 U. S. (200) 5 Opinion of the Court rejected much of the evidence that Ms. Hardt submitted,” at 45a, and had “further ignored the substantial amount of pain medication Ms. Hardt’s treating physi cians had prescribed to her,” at 46a. Accordingly, the court thought it “clear that Reliance’s decision to deny Ms. Hardt long-term disability benefits was not based on substantial evidence.” at 4a. The District Court then denied Hardt’s motion for sum mary judgment, which contended that Reliance’s decision to deny benefits was unreasonable as a matter of law. In so doing, however, the court found “compelling evidence” in the record that “Ms. Hardt [wa]s totally disabled due to her neuropathy.” at 48a. Although it was “inclined to rule in Ms. Hardt’s favor,” the court concluded that “it would be unwise to take this step without first giving Reliance the chance to address the deficiencies in its ap proach.” In the District Court’s view, a remand to Reliance was warranted because “[t]his case presents one of those scenarios where the plan administrator has failed to comply with the ERISA guidelines,” meaning “Ms. Hardt did not get the kind of review to which she was entitled under applicable law.” Accordingly, the court instructed “Reliance to act on Ms. Hardt’s applica tion by adequately considering all the evidence” within 30 days; “[o]therwise,” it warned, “judgment will be issued in favor of Ms. Hardt.” at 49a. Reliance did as instructed. After conducting that review, Reliance found Hardt eligible for long-term dis ability benefits and paid her $55,250 in accrued, past-due benefits. Hardt then moved for attorney’s fees and costs under The District Court assessed her motion under the three-step framework that governed fee requests in ERISA cases under Circuit precedent. At step one of that framework, a district court asks whether the fee claimant is a “ ‘prevailing party.’ ” at 5a–6a (quoting Martin 6 HARDT v. RELIANCE STANDARD LIFE INS. CO. Opinion of the Court v. Blue Cross & Blue Shield of Virginia, Inc., 5 F.3d 20, 20 (CA4 99), and citing Board & Care Home, ). If the fee claimant qualifies as a prevailing party, the court proceeds to step two and “determin[es] whether an award of attor neys’ fees is appropriate” by examining “five factors.” App. to Pet. for Cert. 6a. Finally, if those five factors suggest that a fees award is appropriate, the court “must review the attorneys’ fees and costs requested and limit them to a reasonable amount.” at a ). Applying that framework, the District Court granted Hardt’s motion. It first concluded that Hardt was a pre vailing party because the court’s remand order “sanctioned a material change in the legal relationship of the parties by ordering [Reliance] to conduct the type of review to which [Hardt] was entitled.” at 22a. The court recog nized that the order did not “sanctio[n] a certain result on remand,” but found that it “quite clearly expressed the consequences to [Reliance] were it to fail to complete its reconsideration in an expeditious manner.” at 9a. Accordingly, the remand order “signif[ied] that the court was displeased with the cursory review that [Reliance] had initially given to [Hardt’s] claim, but was inclined to reserve judgment and permit [Reliance] to conduct a proper review of all of the medical evidence.” The —————— These factors are: “ ‘() the degree of opposing parties’ culpability or bad faith; (2) ability of opposing parties to satisfy an award of attor neys’ fees; (3) whether an award of attorneys’ fees against the opposing parties would deter other persons acting under similar circumstances; (4) whether the parties requesting attorneys’ fees sought to benefit all participants and beneficiaries of an ERISA plan or to resolve a signifi cant legal question regarding ERISA itself; and (5) the relative merits of the parties’ positions.’ ” App. to Pet. for Cert. 6a ). Cite as: 560 U. S. (200) Opinion of the Court court next concluded that a fees award was appropriate under the five-factor test, see at 22a–25a, and awarded $39,49 in fees and costs, at 25a–30a. Reliance appealed the fees award, and the Court of Appeals vacated the District Court’s order. According to the Court of Appeals, Hardt failed to satisfy the step-one inquiry—i.e., she failed to establish that she was a “pre vailing party.” In reaching that conclusion, the Court of Appeals relied on this Court’s decision in under which a fee claimant qualifies as a “prevailing party” only if he has obtained an “ ‘enforceable judgmen[t] on the merits’ ” or a “ ‘court-ordered consent decre[e].’ ” 336 Fed. Appx. 332, 335 (CA4 2009) (per curiam) (quoting 532 U.S., 04). The Court of Appeals reasoned that be cause the remand order “did not require Reliance to award benefits to Hardt,” it did “not constitute an ‘enforceable judgment on the merits’ as requires,” thus precluding Hardt from establishing prevailing party Hardt filed a petition for a writ of certiorari seeking review of two aspects of the Court of Appeals’ judgment. First, did the Court of Appeals correctly conclude that permits courts to award attorney’s fees only to a “prevailing party”?2 Second, did the Court of Appeals —————— 2 The Courts of Appeals are divided on this issue. Some (a few only tentatively) agree with the Court of Appeals’ conclusion here that only prevailing parties are entitled to fees under See, e.g., (CA 996) (“Congress declared that, in any ERISA claim advanced by a ‘participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney’s fee’ to the prevailing party” (emphasis added)); (“In analyz ing whether attorney’s fees should be awarded to a ‘prevailing party’ in an ERISA case, a court should consider whether the losing party’s position was justified an taken in good faith. However, we have held that a claimant who is awarded a remand in an ERISA case generally 8 HARDT v. RELIANCE STANDARD LIFE INS. CO. Opinion of the Court correctly identify the circumstances under which a fee claimant is entitled to attorney’s fees under ? We granted certiorari. 558 U. S. (200). II Whether limits the availability of attorney’s fees to a “prevailing party” is a question of statutory con struction. As in all such cases, we begin by analyzing the statutory language, “assum[ing] that the ordinary mean ing of that language accurately expresses the legislative purpose.” v. FBL Financial Services, Inc., 55 U. S. (2009) (slip op., at ) (internal quotation marks omitted). We must enforce plain and unambiguous statu tory language according to its terms. Carcieri v. Salazar, 555 U. S. (2009) (slip op., at ); Jimenez v. Quar terman, 555 U. S. (2009) (slip op., at 5). Section 32(g)() provides: “In any action under this subchapter (other than an action described in paragraph (2)) by a participant, beneficiary, or fiduciary, the court in its discretion may allow a reasonable attorney’s fee and costs of ac tion to either party.” The words “prevailing party” do not appear in this provi sion. Nor does anything else in ’s text purport to limit the availability of attorney’s fees to a “prevailing party.” Instead, expressly grants district courts “discretion” to award attorney’s fees “to either —————— is not a prevailing party in the truest sense of the term” (some internal quotation marks and citation omitted)); (“We also afford certain weight to prevailing party status, even though we acknowledge that the ERISA attorney’s fees provision is not expressly directed at prevailing parties”). Other Courts of Appeals have rejected or dis avowed that position. See, e.g., Miller v. United Welfare Fund, 2 F.3d 066, 04 (CA2 995); ; Cite as: 560 U. S. (200) 9 Opinion of the Court party.” (Emphasis added.) That language contrasts sharply with which governs the availability of attorney’s fees in ERISA actions under (actions to recover delinquent employer contributions to a multiemployer plan). In such cases, only plaintiffs who obtain “a judgment in favor of the plan” may seek attorney’s fees. The contrast between these two paragraphs makes clear that Congress knows how to impose express limits on the availability of attorney’s fees in ERISA cases. Because Congress failed to include in an express “prevailing party” limit on the availability of attorney’s fees, the Court of Appeals’ decision adding that term of art to a fee-shifting statute from which it is conspicuously absent more closely resembles “invent[ing] a statute rather than interpret[ing] one.” (2005) We see no reason to dwell any longer on this question, particularly given Reliance’s concessions. See Brief for Respondent 9–0 (“On its face,” “does not expressly demand, like so many statutes, that a claimant be a ‘prevailing party’ before receiving attorney’s fees”). We therefore hold that a fee claimant need not be a “pre vailing party” to be eligible for an attorney’s fees award under III We next consider the circumstances under which a court may award attorney’s fees pursuant to “Our basic point of reference” when considering the award of attorney’s fees is the bedrock principle known as the “ ‘American Rule’ ”: Each litigant pays his own attorney’s fees, win or lose, unless a statute or contract provides otherwise. ; see 83– 686; Alyeska Pipeline Service ; 02–; 0 HARDT v. RELIANCE STANDARD LIFE INS. CO. Opinion of the Court see also Perdue v. Kenny A., 559 U. S. (200) (slip op., at 5). Statutory changes to this rule take various forms. Most fee-shifting provisions permit a court to award attorney’s fees only to a “prevailing party.” 3 Others permit a “substantially prevailing” party 4 or a “successful” litigant 5 to obtain fees. Still others authorize district courts to award attorney’s fees where “appropriate,” 6 or simply vest district courts with “discretion” to award fees. Of those statutory deviations from the American Rule, we have most often considered statutes containing an express “prevailing party” requirement. See, e.g., Texas State Teachers ; Farrar v. Hobby, 506 U.S. 03, 09–4 (992); 02–606; Sole v. Wyner, Our “prevailing party” precedents, however, do not govern the availability of fees awards under because this provision does not limit the availability of attorney’s fees to the “prevailing party.” at 8–9; see also at (slip op., ) )). Instead, we interpret in light of our prece dents addressing statutory deviations from the American Rule that do not limit attorney’s fees awards to the “pre —————— 3 See, e.g., Board & Care Home, 60– (citing examples); Ruckels, (same). 4 See ib n. 4 (citing examples). 5 See, e.g., 8 U.S. C. (cit ing examples). 6 See n. (citing examples). See, e.g., 5 U.S. C. www(a), 8i(e), 8r(a), 06(g)(4); 20 U.S. C. 42 U.S. C. §aa–6(f). Cite as: 560 U. S. (200) Opinion of the Court vailing party.” In that line of precedents, is the principal case. There, the Court interpreted of the Clean Air Act, which authorizes a court to award fees “whenever it determines that such an award is appropri ate.” 42 U.S. C. We began by noting that be cause nothing in ’s text “clear[ly] show[ed]” that Congress meant to abandon the American Rule, 463 U.S., 85, fee claimants must have achieved some litigating success to be eligible for a fees award under that section, We then concluded that by using the less stringent “whenever appropriate” standard instead of the traditional “prevailing party” standard, Congress had “expand[ed] the class of parties eligible for fees awards from prevailing parties to partially prevailing parties— parties achieving some success, even if not major success.” We thus held “that, absent some degree of success on the merits by the claimant, it is not ‘appropri ate’ for a federal court to award attorney’s fees under” at Applying the interpretive approach we employed in to we first look to “the language of the section,” which unambiguously allows a court to award attorney’s fees “in its discretion to either party,” Statutes vesting judges with such broad discretion are well known in the law, particu larly in the attorney’s fees context. See, e.g., n. see also Perdue, 559 U. S., at (slip op., at 4). Equally well known, however, is the fact that a “judge’s discretion is not unlimited.” Consistent with Cir cuit precedent, the District Court applied five factors to guide its discretion in deciding whether to award attor ney’s fees under See and n. Because these five factors bear no obvious relation to ’s text or to our fee-shifting jurisprudence, they are not required for channeling a court’s discretion when awarding fees under this section. 2 HARDT v. RELIANCE STANDARD LIFE INS. CO. Opinion of the Court Instead, lays down the proper markers to guide a court in exercising the discretion that grants. As in the statute at issue in Con gress failed to indicate clearly in that it “meant to abandon historic fee-shifting principles and intuitive notions of fairness.” 463 U.S., Accord ingly, a fees claimant must show “some degree of success on the merits” before a court may award attorney’s fees under at A claimant does not satisfy that requirement by achieving “trivial success on the merits” or a “purely procedural victor[y],” but does satisfy it if the court can fairly call the outcome of the litigation some success on the merits without conducting a “lengthy inquir[y] into the question whether a particular party’s success was ‘substantial’ or occurred on a ‘central issue.’ ” n. 9.8 Reliance essentially agrees that this standard should govern fee requests under see Brief for Re spondent 3–3, but argues that Hardt has not satisfied it. Specifically, Reliance contends that a court order remand ing an ERISA claim for further consideration can never constitute “some success on the merits,” even if such a remand results in an award of benefits. See at 34–50. Reliance’s argument misses the point, given the facts of this case. Hardt persuaded the District Court to find that “the plan administrator has failed to comply with the ERISA guidelines” and “that Ms. Hardt did not get the kind of review to which she was entitled under applicable law.” App. to Pet. for Cert. 48a; see 29 U.S. C. 29 CFR §2560.–(h) (2009). Although Hardt failed to win summary judgment on her benefits claim, the District —————— 8 We do not foreclose the possibility that once a claimant has satisfied this requirement, and thus becomes eligible for a fees award under a court may consider the five factors adopted by the Court of Appeals, see n. in deciding whether to award attorney’s fees. Cite as: 560 U. S. (200) 3 Opinion of the Court Court nevertheless found “compelling evidence that Ms. Hardt is totally disabled due to her neuropathy,” and stated that it was “inclined to rule in Ms. Hardt’s favor” on her benefits claim, but declined to do so before “first giving Reliance the chance to address the deficiencies in its” statutorily mandated “full and fair review” of that claim. App. to Pet. for Cert. 48a; 29 U.S. C. §33(2). Hardt thus obtained a judicial order instructing Reliance “to act on Ms. Hardt’s application by adequately considering all the evidence” within 30 days; “[o]therwise, judgment will be issued in favor of Ms. Hardt.” App. to Pet. for Cert. 49a. After Reliance conducted that court-ordered review, and consistent with the District Court’s appraisal, Reli ance reversed its decision and awarded Hardt the benefits she sought. App. 20a–23a. These facts establish that Hardt has achieved far more than “trivial success on the merits” or a “purely procedural victory.” Accordingly, she has achieved “some success on the merits,” and the District Court properly exercised its discretion to award Hardt attorney’s fees in this case. Because these conclusions resolve this case, we need not decide today whether a remand order, without more, constitutes “some success on the merits” sufficient to make a party eligible for attorney’s fees under 9 * * * We reverse the judgment of the Court of Appeals for the Fourth Circuit and remand this case for proceedings con sistent with this opinion. It is so ordered. —————— 9 Reliance has not preserved any separate objection to the reason ableness of the amount of fees awarded. See Perdue v. Kenny A., 559 U. S. (200) (slip op., at –8, 4). Cite as: 560 U. S. (200) Opinion of STEVENS, J. SUPREME COURT OF THE UNITED STATES No. 09–448 BRIDGET HARDT, PETITIONER v. RELIANCE STANDARD LIFE INSURANCE COMPANY ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT [May 24, 200] JUSTICE STEVENS, concurring in part and concurring in the judgment. While I join the Court’s judgment and Parts I and II of its opinion, I do not believe that our mistaken interpreta tion of of the Clean Air Act in v. Si erra Club, should be given any spe cial weight in the interpretation of this—or any other— different statutory provision. The outcome in that closely divided case turned, to a significant extent, on a judgment about how to read the legislative history of the provision in question. Compare –693, with at 03–06 (STEVENS, J., dissenting). I agree with the Court in this case that 29 U.S. C. does not impose a “pre vailing party” requirement; I agree, further, that the District Court acted well within its discretion in awarding attorney’s fees to this petitioner. But I would examine the text, structure, and history of any other federal statute authorizing an award of fees before concluding that Con gress intended the same approach under that statute as under this one

Justice Kennedy

majority

Ppl Montana, LLC v. Montana

2012-02-22

https://www.courtlistener.com/opinion/623241/ppl-montana-llc-v-montana/

https://www.courtlistener.com/api/rest/v3/clusters/623241/

2011-027

This case concerns three rivers which flow through Montana and then beyond its borders. The question is whether discrete, identifiable segments of these rivers in Montana were nonnavigable, as federal law defines that concept for purposes of determining whether the State acquired title to the riverbeds underlying those segments, when the State entered the Union in 1889. Montana contends that the rivers must be found navigable at the disputed locations. From this premise, the State asserts that in 1889 it gained title to the disputed riverbeds under the constitutional equal-footing doctrine. Based on its title claims, Montana sought compensation from PPL Montana, LLC, a power company, for its use of the riv­ erbeds for hydroelectric projects. The Montana courts granted summary judgment on title to Montana, awarding it $41 million in rent for the riverbeds for the period from 2000 to 2007 alone. That judgment must be reversed. I The three rivers in question are the Missouri River, the Madison River, and the Clark Fork River. The Missouri and the Madison are on the eastern side of the Continen­ 2 PPL MONTANA, LLC v. MONTANA Opinion of the Court tal Divide. The Madison flows into the Missouri, which then continues at length to its junction with the Missis­ sippi River. The Clark Fork River is on the western side of the Continental Divide. Its waters join the Columbia River system that flows into the Pacific Ocean. Each river shall be described in somewhat more detail. A The Missouri River originates in Montana and traverses seven States before a point just north of St. Louis where it joins the Mississippi. 19 Encyclopedia Americana 270 (int’l ed. 2006). If considered with the continuous path formed by certain streams that provide the Missouri Riv­ er’s headwaters, the Missouri is over 2,500 miles long, the longest river in the United States. Ibid. The Missouri River’s basin (the land area drained by the river) is the second largest in the Nation, surpassed only by the Mis­ sissippi River basin of which it is a part. Rivers of North America 427 (A. Benke & C. Cushing eds. 2005) (hereinaf­ ter Rivers of North America). As a historical matter, the river shifted and flooded often, and contained many sand­ bars, islands, and unstable banks. Id., at 432–433. The river was once described as one of the most “variable beings in creation,” as “inconstant [as] the action of the jury,” Sioux City Register (Mar. 28, 1868); and its high quantity of downstream sediment flow spawned its nick­ name, the “Big Muddy,” Rivers of North America 433. The upstream part of the Missouri River in Montana, known as the Upper Missouri River, is better charac­ terized as rocky rather than muddy. While one usually thinks of the Missouri River as flowing generally south, as indeed it does beginning in North Dakota, the Upper Missouri in Montana flows north from its principal head­ waters at Three Forks, which is located about 4,000 feet above sea level in the Rocky Mountain area of southwest­ ern Montana. It descends through scenic mountain ter­ Cite as: 565 U. S. ____ (2012) 3 Opinion of the Court rain including the deep gorge at the Gates of the Moun­ tains; turns eastward through the Great Falls reach, cascading over a roughly 10-mile stretch of cataracts and rapids over which the river drops more than 400 feet; and courses swiftly to Fort Benton, a 19th-century fur trading post, before progressing farther east into North Dakota and on to the Great Plains. 19 Encyclopedia Americana, supra, at 270; 8 New Encyclopaedia Britannica 190 (15th ed. 2007) (hereinafter Encyclopaedia Britannica); 2 Co­ lumbia Gazetteer of the World 2452 (2d ed. 2008) (here- inafter Columbia Gazetteer); F. Warner, Montana and the Northwest Territory 75 (1879). In 1891, just after Mon­ tana became a State, the Upper Missouri River above Fort Benton was “seriously obstructed by numerous rapids and rocks,” and the 168-mile portion flowing eastward “[f]rom Fort Benton to Carroll, Mont., [was] called the rocky riv­ er.” Annual Report of the Chief of Engineers, U. S. Army (1891), in 2 H. R. Exec. Doc. No. 1, 52d Cong., 1st Sess., pt. 2, pp. 275–276 (1891) (hereinafter H. R. Exec. Doc.). The Great Falls exemplify the rocky, rapid character of the Upper Missouri. They consist of five cascade-like waterfalls located over a stretch of the Upper Missouri leading downstream from the city of Great Falls in mid­ western Montana. The waterfall farthest downstream, and the one first encountered by Meriwether Lewis and William Clark when they led their remarkable expedition through the American West in 1805, is the eponymous “Great Falls,” the tallest of the five falls at 87 feet. W. Clark, Dear Brother: Letters of William Clark to Jonathan Clark 109, n. 5 (J. Holmberg ed. 2002) (hereinafter Dear Brother). Lewis recorded observations of this “sublimely grand specticle”: “[T]he whole body of water passes with incredible swiftness. . . . over a precipice of at least eighty feet . . . . [T]he irregular and somewhat projecting rocks 4 PPL MONTANA, LLC v. MONTANA Opinion of the Court below receives the water . . . and brakes it into a per­ fect white foam which assumes a thousand forms in a moment sometimes flying up in jets . . . [that] are scarcely formed before large roling bodies of the same beaten and foaming water is thrown over and conceals them. . . . [T]he [rainbow] reflection of the sun on the sprey or mist . . . adds not a little to the beauty of this majestically grand senery.” The Lewis and Clark Journals: An American Epic of Discovery 129 (G. Moulton ed. 2003) (hereinafter Lewis and Clark Jour­ nals); The Journals of Lewis and Clark 136–138 (B. DeVoto ed. 1981). If one proceeds alongside the river upstream from Great Falls, as Lewis did in scouting the river for the expedition, the other four falls in order are “Crooked Falls” (19 feet high); “Rainbow Falls” (48 feet), which Lewis called “one of the most bea[u]tifull objects in nature”; “Colter Falls” (7 feet), and “Black Eagle Falls” (26 feet). See Lewis and Clark Journals 131–132; Dear Brother 109, n. 5; P. Cut- right, Lewis & Clark: Pioneering Naturalists 154–156 (2003). Despite the falls’ beauty, Lewis could see that their steep cliffs and swift waters would impede progress on the river, which had been the expedition’s upstream course for so many months. The party proceeded over a more circuitous land route by means of portage, circum­ venting the Great Falls and their surrounding reach of river before returning to travel upon the river about a month later. See Lewis and Clark Journals 126–152. The Upper Missouri River, both around and further upstream of the Great Falls, shares the precipitous and fast-moving character of the falls themselves. As it moves downstream over the Great Falls reach, a 17-mile stretch that begins somewhat above the head of Black Eagle Falls, the river quickly descends about 520 feet in elevation, see Montana Power Co. v. Federal Power Comm’n, 185 F. 2d Cite as: 565 U. S. ____ (2012) 5 Opinion of the Court 491 (CADC 1950); 2010 MT 64, ¶¶29–30, 108–109, 355 Mont. 402, 416, 442, 229 P.3d 421, 433, 449, dropping over 400 feet within 10 miles from the first rapid to the foot of Great Falls, Parker, Black Eagle Falls Dam, 27 Transactions of the Am. Soc. of Civil Engineers 56 (1892). In 1879, that stretch was a “constant succession of rapids and falls.” Warner, supra, at 75; see also 9 The Journals of the Lewis & Clark Expedition 171 (G. Moulton ed. 1995) (hereinafter Journals of the Lewis & Clark Expedition) (“a continued rapid the whole way for 17 miles”). Lewis noted the water was so swift over the area that buffalo were swept over the cataracts in “considerable quantities” and were “instantly crushed.” Lewis and Clark Journals 136– 137. Well above the Great Falls reach, the Stubbs Ferry stretch of the river from Helena to Cascade also had steep gradient and was “much obstructed by rocks and danger­ ous rapids.” Report of the Secretary of War, 2 H. R. Doc. No. 2, 54th Cong., 1st Sess., pt. 1, p. 301 (1895). B The second river to be considered is the Madison, one of the Missouri River’s headwater tributaries. Named by Lewis and Clark for then-Secretary of State James Madi­ son, the Madison River courses west out of the Northern Rocky Mountains of Wyoming and Montana in what is now Yellowstone National Park, then runs north and merges with the Jefferson and Gallatin Rivers at Three Forks, Montana, to form the Upper Missouri. Lewis and Clark Journals 158; Rivers of North America 459; 7 En- cyclopaedia Britannica 658; 2 Columbia Gazetteer 2242. Along its path, the Madison River flows through two lakes artificially created by dams built in canyons: Hebgen Lake and Ennis Lake. Federal Writers’ Project of the Work Projects Administration, Montana: A State Guide Book 356 (J. Stahlberg ed. 1949); R. Aarstad, E. Arguimbau, E. Baumler, C. Porsild, & B. Shovers, Montana Place Names 6 PPL MONTANA, LLC v. MONTANA Opinion of the Court from Alzada to Zortman: A Montana Historical Society Guide 166 (2009). C The third river at issue in this case is the Clark Fork. That river, which consists in large part of “long, narrow streams confined by mountainous terrain,” rises at an ele- vation of about 5,000 feet in the Silver Bow Mountains of southwestern Montana. 3 Encyclopaedia Britannica 352; Dept. of Interior, U. S. Geological Survey, J. Stevens & F. Henshaw, Surface Water Supply of the United States, 1907–8, Water-Supply Paper 252, pp. 81–82 (1910). The river flows northward for about 40 miles; turns northwest for a stretch; then turns abruptly north­ east for a short stint, by which time it has descended nearly 2,500 feet in altitude. It then resumes a north­ westward course until it empties into Lake Pend Oreille in northern Idaho, out of which flows a tributary to the Co­ lumbia River of the Pacific Northwest. Ibid.; 1 Columbia Gazetteer 816. The Clark Fork is “one of the wildest and most picturesque streams in the West,” marked by “many waterfalls and boxed gorges.” Federal Writers’ Projects of the Works Progress Administration, Idaho: A Guide in Word and Picture 230 (2d ed. 1950). Lewis and Clark knew of the Clark Fork River but did not try to navigate it, in part because the absence of salm­ on in one of its tributaries made Lewis believe “ ‘there must be a considerable fall in [the river] below.’ ” H. Fritz, The Lewis and Clark Expedition 38–39 (2004). This was correct, for shortly before the Clark Fork exits to Idaho from the northwest corner of Montana, “the waters of the river dash madly along their rocky bed,” dropping over 30 feet in a half-mile as they rush over falls and rapids in­ cluding a “foaming waterfall” now known as Thompson Falls. O. Rand, A Vacation Excursion: From Massachu­ setts Bay to Puget Sound 176–177 (1884); C. Kirk, A Cite as: 565 U. S. ____ (2012) 7 Opinion of the Court History of the Montana Power Company 231 (2008). II Petitioner PPL Montana, LLC (PPL), owns and operates hydroelectric facilities that serve Montana residents and businesses. Ten of its facilities are built upon riverbeds underlying segments of the Upper Missouri, Madison, and Clark Fork Rivers. It is these beds to which title is disputed. On the Upper Missouri River, PPL has seven hydroelec­ tric dams. Five of them are along the Great Falls reach, including on the three tallest falls; and the other two are in canyons upstream on the Stubbs Ferry stretch. See K. Robison, Cascade County and Great Falls 56 (2011); Aar­ stad et al., supra, at 125, 119, 145–146. On the Madison River, two hydroelectric dams are located in steep can­ yons. On the Clark Fork River, a hydroelectric facility is constructed on the Thompson Falls. The dams on the Upper Missouri and Madison are called the Missouri-Madison project. The Thompson Falls facility is called the Thompson Falls project. Both projects are licensed by the Federal Energy Regulatory Commis­ sion. PPL acquired them in 1999 from its predecessor, the Montana Power Company. 355 Mont., at 405–406, 229 P.3d, at 426. PPL’s power facilities have existed at their locations for many decades, some for over a century. See Robison, supra, at 40 (Black Eagle Falls dam constructed by 1891). Until recently, these facilities were operated without title­ based objection by the State of Montana. The State was well aware of the facilities’ existence on the riverbeds— indeed, various Montana state agencies had participated in federal licensing proceedings for these hydroelectric projects. See, e.g., Montana Power Co., 8 F. P. C. 751, 752 (1949) (Thompson Falls project); Montana Power Co., 27 FERC ¶62,097, pp. 63,188–63,189 (1984) (Ryan Dam of 8 PPL MONTANA, LLC v. MONTANA Opinion of the Court Missouri-Madison project). Yet the State did not seek, and accordingly PPL and its predecessor did not pay, compen­ sation for use of the riverbeds. 355 Mont., at 406, 229 P. 3d, at 427. Instead, the understanding of PPL and the United States is that PPL has been paying rents to the United States for use of those riverbeds, as well as for use of river uplands flooded by PPL’s projects. Reply Brief for Petitioner 4; App. to Supp. Brief for Petitioner 4–5; Brief for United States as Amicus Curiae 3, n. 3. In 2003, parents of Montana schoolchildren sued PPL in the United States District Court for the District of Mon­ tana, arguing that PPL had built its facilities on riverbeds that were state owned and part of Montana’s school trust lands. 355 Mont., at 406, 229 P. 3d, at 426. Prompted by the litigation, the State joined the lawsuit, for the first time seeking rents for PPL’s riverbed use. The case was dismissed in September 2005 for lack of diversity juris- diction. Dolan v. PPL Montana, LLC, No. 9:03–cv–167 (D Mont., Sept. 27, 2005). PPL and two other power companies sued the State of Montana in the First Judicial District Court of Montana, arguing that the State was barred from seeking compensa­ tion for use of the riverbeds. 355 Mont., at 407–408, 229 P. 3d, at 427–428. By counterclaim, the State sought a declaration that under the equal-footing doctrine it owns the riverbeds used by PPL and can charge rent for their use. Id., at 408, 229 P. 3d, at 428. The Montana trial court granted summary judgment to Montana as to navi­ gability for purposes of determining riverbed title. Id., at 408–409, 413–414, 229 P.3d, at 428, 431–432; App. to Pet. for Cert. 143. The court decided that the State owned the riverbeds. 355 Mont., at 428–429, 229 P. 3d, at 440. The court ordered PPL to pay $40,956,180 in rent for use of the riverbeds between 2000 and 2007. Id., at 431–432, 229 P. 3d, at 442–443. Whether a lease for future periods would commence, and, if so, at what rental rate, seems to Cite as: 565 U. S. ____ (2012) 9 Opinion of the Court have been left to the discretion of the Montana Board of Land Commissioners. App. to Pet. for Cert. 128–129. In a decision by a divided court, the Montana Supreme Court affirmed. 355 Mont., at 461–462, 229 P. 3d, at 460– 461; id., at 462, 229 P. 3d, at 461 (dissenting opinion). The court reasoned from the background principle that “navigability for title purposes is very liberally construed.” Id., at 438, 229 P. 3d, at 446. It dismissed as having “limited applicability” this Court’s approach of assessing the navigability of the disputed segment of the river ra­ ther than the river as a whole. Id., at 441–442, 229 P. 3d, at 448–449. The Montana court accepted that certain relevant stretches of the rivers were not navigable but declared them “merely short interruptions” insufficient as a matter of law to find nonnavigability, since traffic had circumvented those stretches by overland portage. Id., at 438, 442, 229 P.3d, at 446, 449. Placing extensive reliance upon evidence of present-day use of the Madison River, the court found that river navigable as a matter of law at the time of statehood. Id., at 439, 229 P. 3d, at 447. Justice Rice dissented. Id., at 462, 229 P.3d, at 461. He stated that “courts are not to assume an entire river is navigable merely because certain reaches of the river are navigable.” Id., at 464, 229 P. 3d, at 462. The majority erred, he wrote, in rejecting the “section-by-section ap­ proach” and “declaring, as a matter of law, that the reaches claimed by PPL to be non-navigable are simply too ‘short’ to matter,” when in fact PPL’s evidence showed the “disputed reaches of the rivers were, at the time of state­ hood, non-navigable.” Id., at 463–466, 476–477, 229 P.3d, at 462–464, 470. This Court granted certiorari, 564 U. S. ___ (2011), and now reverses the judgment. 10 PPL MONTANA, LLC v. MONTANA Opinion of the Court III A PPL contends the opinion of the Montana Supreme Court is flawed in three respects: first, the court’s failure to consider with care the navigability of the particular river segments to which title is disputed, and its disregard of the necessary overland portage around some of those segments; second, its misplaced reliance upon evidence of present-day, recreational use; and third, what the state court itself called its liberal construction of the navigabil­ ity test, which did not place the burden of proof upon the State to show navigability. Brief for Petitioner 26. The United States as amicus is in substantial agreement with PPL’s arguments, although it offers a more extended dis­ cussion with respect to evidence of present-day, recrea­ tional use. Brief for United States 27–33. It is appropriate to begin the analysis by discussing the legal principles that control the case. B The rule that the States, in their capacity as sovereigns, hold title to the beds under navigable waters has origins in English common law. See Shively v. Bowlby, 152 U.S. 1, 13 (1894). A distinction was made in England between waters subject to the ebb and flow of the tide (royal rivers) and nontidal waters (public highways). With respect to royal rivers, the Crown was presumed to hold title to the riverbed and soil, but the public retained the right of passage and the right to fish in the stream. With respect to public highways, as the name suggests, the public also retained the right of water passage; but title to the riv­ erbed and soil, as a general matter, was held in private ownership. Riparian landowners shared title, with each owning from his side to the center thread of the stream, as well as the exclusive right to fish there. See Idaho v. Coeur d’Alene Tribe of Idaho, 521 U.S. 261, 285 (1997) Cite as: 565 U. S. ____ (2012) 11 Opinion of the Court (summarizing J. Angell, A Treatise on the Common Law in Relation to Water-Courses 14–18 (1824)); 3 J. Kent, Commentaries on American Law 528–529 (9th ed. 1858). While the tide-based distinction for bed title was the initial rule in the 13 Colonies, after the Revolution Ameri­ can law moved to a different standard. Some state courts came early to the conclusion that a State holds presump­ tive title to navigable waters whether or not the waters are subject to the ebb and flow of the tide. See, e.g., Car- son v. Blazer, 2 Binn. 475 (Pa. 1810); Executors of Cates v. Wadlington, 12 S. C. L. 580 (1822); Wilson v. Forbes, 13 N. C. 30 (1828); Bullock v. Wilson, 2 Port. 436 (Ala. 1835); Elder v. Burrus, 25 Tenn. 358 (1845). The tidal rule of “navigability” for sovereign ownership of riverbeds, while perhaps appropriate for England’s dominant coastal geog­ raphy, was ill suited to the United States with its vast number of major inland rivers upon which navigation could be sustained. See L. Houck, Law of Navigable Riv­ ers 26–27, 31–35 (1868); Packer v. Bird, 137 U.S. 661, 667–669 (1891). By the late 19th century, the Court had recognized “the now prevailing doctrine” of state sovereign “title in the soil of rivers really navigable.” Shively, supra, at 31; see Barney v. Keokuk, 94 U.S. 324, 336 (1877) (“In this country, as a general thing, all waters are deemed navigable which are really so”). This title rule became known as “navigability in fact.” The rule for state riverbed title assumed federal consti­ tutional significance under the equal-footing doctrine. In 1842, the Court declared that for the 13 original States, the people of each State, based on principles of sovereign­ ty, “hold the absolute right to all their navigable waters and the soils under them,” subject only to rights surren­ dered and powers granted by the Constitution to the Federal Government. Martin v. Lessee of Waddell, 16 Pet. 367, 410 (1842). In a series of 19th-century cases, the Court determined that the same principle applied to 12 PPL MONTANA, LLC v. MONTANA Opinion of the Court States later admitted to the Union, because the States in the Union are coequal sovereigns under the Constitution. See, e.g., Lessee of Pollard v. Hagan, 3 How. 212, 228–229 (1845); Knight v. United States Land Assn., 142 U.S. 161, 183 (1891); Shively, supra, at 26–31; see United States v. Texas, 339 U.S. 707, 716 (1950). These precedents are the basis for the equal-footing doctrine, under which a State’s title to these lands was “conferred not by Congress but by the Constitution itself.” Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363, 374 (1977). It follows that any ensuing questions of navigability for de- termining state riverbed title are governed by federal law. See, e.g., United States v. Utah, 283 U.S. 64, 75 (1931); United States v. Oregon, 295 U.S. 1, 14 (1935). The title consequences of the equal-footing doctrine can be stated in summary form: Upon statehood, the State gains title within its borders to the beds of waters then navigable (or tidally influenced, see Phillips Petroleum Co. v. Mississippi, 484 U.S. 469 (1988), although that is not relevant in this case). It may allocate and govern those lands according to state law subject only to “the para­ mount power of the United States to control such waters for purposes of navigation in interstate and foreign com­ merce.” Oregon, supra, at 14; see Montana v. United States, 450 U.S. 544, 551 (1981); United States v. Holt State Bank, 270 U.S. 49, 54 (1926). The United States retains any title vested in it before statehood to any land beneath waters not then navigable (and not tidally influ­ enced), to be transferred or licensed if and as it chooses. See Utah, supra, at 75; Oregon, supra, at 14. Returning to the “navigability in fact” rule, the Court has explained the elements of this test. A basic formula­ tion of the rule was set forth in The Daniel Ball, 10 Wall. 557 (1871), a case concerning federal power to regulate navigation: Cite as: 565 U. S. ____ (2012) 13 Opinion of the Court “Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are sus­ ceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.” Id., at 563. The Daniel Ball formulation has been invoked in con­ sidering the navigability of waters for purposes of as­ sessing federal regulatory authority under the Constitu­ tion, and the application of specific federal statutes, as to the waters and their beds. See, e.g., ibid.; The Montello, 20 Wall. 430, 439 (1874); United States v. Appalachian Elec. Power Co., 311 U.S. 377, 406, and n. 21 (1940) (Fed­ eral Power Act); Rapanos v. United States, 547 U.S. 715, 730–731 (2006) (plurality opinion) (Clean Water Act); id., at 761 (KENNEDY, J., concurring in judgment) (same). It has been used as well to determine questions of title to water beds under the equal-footing doctrine. See Utah, supra, at 76; Oklahoma v. Texas, 258 U.S. 574, 586 (1922); Holt State Bank, supra, at 56. It should be noted, however, that the test for navigability is not applied in the same way in these distinct types of cases. Among the differences in application are the following. For state title under the equal-footing doctrine, naviga­ bility is determined at the time of statehood, see Utah, supra, at 75, and based on the “natural and ordinary con- dition” of the water, see Oklahoma, supra, at 591. In contrast, admiralty jurisdiction extends to water routes made navigable even if not formerly so, see, e.g., Ex parte Boyer, 109 U.S. 629, 631–632 (1884) (artificial canal); and federal regulatory authority encompasses waters that only recently have become navigable, see, e.g., Philadelphia Co. v. Stimson, 223 U.S. 605, 634–635 (1912), were once navigable but are no longer, see Economy Light & Power 14 PPL MONTANA, LLC v. MONTANA Opinion of the Court Co. v. United States, 256 U.S. 113, 123–124 (1921), or are not navigable and never have been but may become so by reasonable improvements, see Appalachian Elec. Power Co., supra, at 407–408. With respect to the federal com­ merce power, the inquiry regarding navigation historically focused on interstate commerce. See The Daniel Ball, supra, at 564. And, of course, the commerce power ex­ tends beyond navigation. See Kaiser Aetna v. United States, 444 U.S. 164, 173–174 (1979). In contrast, for title purposes, the inquiry depends only on navigation and not on interstate travel. See Utah, supra, at 76. This list of differences is not exhaustive. Indeed, “[e]ach application of [the Daniel Ball] test . . . is apt to uncover variations and refinements which require further elaboration.” Ap- palachian Elec. Power Co., supra, at 406. IV A The primary flaw in the reasoning of the Montana Su­ preme Court lies in its treatment of the question of river segments and overland portage. To determine title to a riverbed under the equal-footing doctrine, this Court considers the river on a segment­ by-segment basis to assess whether the segment of the river, under which the riverbed in dispute lies, is navigable or not. In United States v. Utah, for example, the Court noted, “the controversy relates only to the sections of the riv­ ers which are described in the complaint, and the Master has limited his findings and conclusions as to navigability accordingly. The propriety of this course, in view of the physical characteristics of the streams, is apparent. Even where the navigability of a river, speaking generally, is a matter of common knowledge, and hence one of which judicial notice may be taken, it may yet be a question, to be determined upon evi­ Cite as: 565 U. S. ____ (2012) 15 Opinion of the Court dence, how far navigability extends.” 283 U.S., at 77. The Court went on to conclude, after reciting and as­ sessing the evidence, that the Colorado River was naviga­ ble for its first roughly 4-mile stretch, nonnavigable for the next roughly 36-mile stretch, and navigable for its remain­ ing 149 miles. Id., at 73–74, 79–81, 89. The Court noted the importance of determining “the exact point at which navigability may be deemed to end.” Id., at 90. Similarly, in Brewer-Elliott Oil & Gas Co. v. United States, 260 U.S. 77, 85 (1922), the Court examined the segment of the Arkansas River that ran along the Osage Indian Reservation, assessing whether the Arkansas River was “navigable in fact at the locus in quo.” The Court concluded that the United States originally, and the Osag­ es as its grantees, unequivocally held title to the riverbeds because the Arkansas River “is and was not navigable at the place where the river bed lots, here in controversy, are.” Id., at 86. The Court found the segment of river along the reservation to be nonnavigable even though a segment of the river that began further downstream was navigable. Ibid. See also Oklahoma, supra, at 583, 584, 587–588, 589–591 (noting that “how far up the streams navigability extended was not known”; assessing separate­ ly the segments of the Red River above and below its confluence with the Washita River within Oklahoma’s borders; and concluding that neither segment, and hence “no part of the river within Oklahoma,” was navigable). The Montana Supreme Court discounted the segment­ by-segment approach of this Court’s cases, calling it “a piecemeal classification of navigability—with some stretches declared navigable, and others declared non­ navigable.” 355 Mont., at 440–442, 229 P. 3d, at 448–449. This was error. The segment-by-segment approach to navigability for title is well settled, and it should not be disregarded. A key justification for sovereign ownership of 16 PPL MONTANA, LLC v. MONTANA Opinion of the Court navigable riverbeds is that a contrary rule would allow private riverbed owners to erect improvements on the riverbeds that could interfere with the public’s right to use the waters as a highway for commerce. While the Federal Government and States retain regulatory power to protect public navigation, allocation to the State of the beds un­ derlying navigable rivers reduces the possibility of conflict between private and public interests. See Utah, supra, at 82–83; Packer, 137 U.S., at 667. By contrast, segments that are nonnavigable at the time of statehood are those over which commerce could not then occur. Thus, there is no reason that these segments also should be deemed owned by the State under the equal-footing doctrine. Practical considerations also support segmentation. Physical conditions that affect navigability often vary significantly over the length of a river. This is particularly true with longer rivers, which can traverse vastly different terrain and the flow of which can be affected by varying local climates. The Missouri River provides an excellent example: Between its headwaters and mouth, it runs for over 2,000 miles out of steep mountains, through canyons and upon rocky beds, over waterfalls and rapids, and across sandy plains, capturing runoff from snow melt and farmland rains alike. These shifts in physical conditions provide a means to determine appropriate start points and end points for the segment in question. Topographical and geographical indicators may assist. See, e.g., Utah, supra, at 77–80 (gradient changes); Oklahoma, 258 U.S., at 589 (location of tributary providing additional flow). A segment approach to riverbed title allocation under the equal-footing doctrine is consistent with the manner in which private parties seek to establish riverbed title. For centuries, where title to the riverbed was not in the sover­ eign, the common-law rule for allocating riverbed title among riparian landowners involved apportionment de­ fined both by segment (each landowner owns bed and soil Cite as: 565 U. S. ____ (2012) 17 Opinion of the Court along the length of his land adjacent) and thread (each landowner owns bed and soil to the center of the stream). See J. Angell, A Treatise on the Law of Watercourses 18 (6th ed. 1869); Tyler v. Wilkinson, 24 F. Cas. 472, 474 (No. 14,312) (CC RI 1827) (Story, J.). Montana, moreover, cannot suggest that segmentation is inadministrable when the state courts managed to divide up and apportion the underlying riverbeds for purposes of determining their value and the corresponding rents owed by PPL. The Montana Supreme Court, relying upon Utah, de- cided that the segment-by-segment approach is inapplicable here because it “does not apply to ‘short interruption[s] of navigability in a stream otherwise navigable.’ ” 355 Mont., at 442, 229 P. 3d, at 449 (quoting Utah, 283 U.S., at 77). This was mistaken. In Utah, this Court noted in pass­ ing that the facts of the case concerned “long reaches with particular characteristics of navigability or non­ navigability” rather than “short interruption[s].” Id., at 77. The Court in Utah did not say the case would have a different outcome if a “short interruption” were concerned. Ibid. Even if the law might find some nonnavigable segments so minimal that they merit treatment as part of a longer, navigable reach for purposes of title under the equal­ footing doctrine, it is doubtful that any of the segments in this case would meet that standard, and one—the Great Falls reach—certainly would not. As an initial matter, the kinds of considerations that would define a de minimis exception to the segment-by-segment approach would be those related to principles of ownership and title, such as inadministrability of parcels of exceedingly small size, or worthlessness of the parcels due to overdivision. See Heller, The Tragedy of the Anticommons, 111 Harv. L. Rev. 621, 682–684 (1998) (explaining that dividing prop- erty into square-inch parcels, could, absent countervail- ing legal mechanisms, “paralyze the alienability of scarce 18 PPL MONTANA, LLC v. MONTANA Opinion of the Court resources . . . or diminish their value too drastically”). An analysis of segmentation must be sensibly applied. A comparison of the nonnavigable segment’s length to the overall length of the stream, for instance, would be simply irrelevant to the issue at hand. A number of the segments at issue here are both dis­ crete, as defined by physical features characteristic of navigability or nonnavigability, and substantial, as a matter of administrability for title purposes. This is best illustrated by the Great Falls reach, which is 17 miles long and has distinct drops including five waterfalls and con­ tinuous rapids in between. There is plenty of reason to doubt that reach’s navigability based on the presence of the series of falls. There is also reason to think that title to that segment of bed would not be worthless or inadmin­ istrable. Indeed, the State sought and was awarded rent in the amount of $41 million for PPL’s various hydroelec­ tric facilities attached to the riverbeds, half of which are along the Great Falls reach. Applying its “short interruptions” approach, the Mon­ tana Supreme Court decided that the Great Falls reach was navigable because it could be managed by way of land route portage. 355 Mont., at 440, 442, 229 P.3d, at 447, 449. The court noted in particular the portage of Lewis and Clark’s expedition. Ibid. Yet that very portage re­ veals the problem with the Montana Supreme Court’s analysis. Leaving behind their larger boats, Lewis and Clark transported their supplies and some small canoes about 18 miles over land, which took at least 11 days and probably more. See Lewis and Clark Journals 126–152; 9 Journals of the Lewis & Clark Expedition 173; Dear Brother 109. Even if portage were to take travelers only one day, its significance is the same: it demonstrates the need to bypass the river segment, all because that part of the river is nonnavigable. Thus, the Montana Supreme Court was wrong to state, with respect to the Great Falls Cite as: 565 U. S. ____ (2012) 19 Opinion of the Court reach and other stretches of the rivers in question, that portages “are not sufficient to defeat a finding of navigabil­ ity.” 355 Mont., at 438, 229 P.3d, at 446. In most cases, they are, because they require transportation over land rather than over the water. This is such a case, at least as to the Great Falls reach. In reaching its conclusion that the necessity of portage does not undermine navigability, the Montana Supreme Court misapplied this Court’s decision in The Montello, 20 Wall. 430. See 355 Mont., at 438, 229 P.3d, at 446. The consideration of portage in The Montello was for a differ­ ent purpose. The Court did not seek to determine whether the river in question was navigable for title purposes but instead whether it was navigable for purposes of deter­ mining whether boats upon it could be regulated by the Federal Government. 20 Wall., at 439, 445. The primary focus in The Montello was not upon navigability in fact but upon whether the river was a “navigable water of the United States.” Id., at 439, 443. The latter inquiry is doctrinally distinct. It turns upon whether the river “forms by itself, or by its connection with other waters, a continued highway over which commerce is, or may be, carried with other States or foreign countries in the cus­ tomary modes in which such commerce is conducted by water.” Id., at 439 (citing The Daniel Ball, 10 Wall. 557). It is language similar to “continued highway” that Mon­ tana urges the Court to import into the title context in lieu of the Court’s established segmentation approach. Brief for Respondent 42–43, n. 16. The Montello reasonably concluded that the portages required in that case did not prevent the river from being part of a channel of interstate commerce. Portages con­ tinued that channel because goods could be successfully transported interstate, in part upon the waters in ques­ tion. This provided sufficient basis to regulate steamboats at places where those boats could and did, in fact, navigate 20 PPL MONTANA, LLC v. MONTANA Opinion of the Court portions of the river. 20 Wall., at 445. Here, by contrast, the question regards ownership of the bed under river segments that the Montana Supreme Court, by calling them “interruptions in the navigation,” 355 Mont., at 442, 229 P. 3d, at 449, acknowledges were nonnavigable. The reasoning and the inquiry of The Montello does not control the outcome where the quite different concerns of the riverbed title context apply. Having clarified that portages may defeat navigability for title purposes, and do so with respect to the Great Falls reach, the Court sees no evidence in the record that could demonstrate that the Great Falls reach was navigable. Montana does not dispute that overland portage was necessary to traverse that reach. Indeed, the State admits “the falls themselves were not passable by boat at state­ hood.” Brief for Respondent 10. And the trial court noted the falls had never been navigated. App. to Pet. for Cert. 137. Based on these statements, this Court now con­ cludes, contrary to the Montana Supreme Court’s decision, that the 17-mile Great Falls reach, at least from the head of the first waterfall to the foot of the last, is not navigable for purposes of riverbed title under the equal-footing doctrine. This Court also determines, based on evidence in the record, that there is a significant likelihood that some of the other river stretches in dispute also fail the federal test of navigability for the purpose of determining title. For example, as to the disputed segment of the Clark Fork River, the Montana Supreme Court incorrectly stated the sole evidence for nonnavigability “consists of conclusory statements . . . without any specific factual support.” 355 Mont., at 440, 229 P. 3d, at 448. In fact, PPL introduced a report of the U. S. Army Corps of Engineers from 1891, two years after Montana’s date of statehood, documenting that the portion of the Clark Fork river between Missoula and Lake Pend Oreille (which includes the location of Cite as: 565 U. S. ____ (2012) 21 Opinion of the Court PPL’s Thompson Falls facility) had a fall of about 1,100 feet in 250 miles and “is a mountain torrential stream, full of rocks, rapids, and falls, . . . utterly unnavigable, and in- capable of being made navigable except at an enormous cost.” 2 H. R. Exec. Doc., pt. 5, at 3250; see App. 379–380 (Docket No. 169). The report based its conclusions on various failed attempts to navigate the river. It found the Thompson Falls “a complete obstruction to navigation” and the river around that area “exceedingly rapid, rough, and full of rocks.” 2 H. R. Exec. Doc., pt. 5, at 3251. This was consistent with a 1910 Federal District Court decree. The decree adjudicated a title dispute between two private parties over the riverbed near and under Thompson Falls and declared the river at that place “was and is a non­ navigable stream incapable of carrying the products of the country in the usual manner of water transportation.” Steele v. Donlan, Equity No. 950 (CC D Mont., July 19, 1910), p. 1; see App. 380–381 (Docket No. 169). While the ultimate decision as to this and the other disputed river stretches is to be determined, in the first instance, by the Montana courts upon remand, the relevant evidence should be assessed in light of the principles discussed in this opinion. B The Montana Supreme Court further erred as a matter of law in its reliance upon the evidence of present-day, primarily recreational use of the Madison River. Error is not inherent in a court’s consideration of such evidence, but the evidence must be confined to that which shows the river could sustain the kinds of commercial use that, as a realistic matter, might have occurred at the time of state­ hood. Navigability must be assessed as of the time of statehood, and it concerns the river’s usefulness for “ ‘trade and travel,’ ” rather than for other purposes. See Utah, 283 U.S., at 75–76. Mere use by initial explorers or trap­ 22 PPL MONTANA, LLC v. MONTANA Opinion of the Court pers, who may have dragged their boats in or alongside the river despite its nonnavigability in order to avoid getting lost, or to provide water for their horses and them­ selves, is not itself enough. See Oregon, 295 U.S., at 20–21 (evidence that “trappers appear to have waded or walked” through the river, dragging their boats rather than floating them, had “no bearing on navigability”). True, river segments are navigable not only if they “[were] used,” but also if they “[were] susceptible of being used,” as highways of commerce at the time of statehood. Utah, supra, at 76 (internal quotation marks omitted). Evidence of recreational use, depending on its nature, may bear upon susceptibility of commercial use at the time of statehood. See Appalachian Elec. Power Co., 311 U.S., at 416 (“[P]ersonal or private use by boats demonstrates the availability of the stream for the simpler types of commer­ cial navigation”); Utah, 283 U.S., at 82 (fact that actual use has “been more of a private nature than of a public, commercial sort . . . cannot be regarded as controlling”). Similarly, poststatehood evidence, depending on its na­ ture, may show susceptibility of use at the time of state­ hood. See id., at 82–83 (“[E]xtensive and continued [historical] use for commercial purposes” may be the “most persuasive” form of evidence, but the “crucial question” is the potential for such use at the time of statehood, rather than “the mere manner or extent of actual use”). Evidence of present-day use may be considered to the extent it informs the historical determination whether the river segment was susceptible of use for commercial navi­ gation at the time of statehood. For the susceptibility analysis, it must be determined whether trade and travel could have been conducted “in the customary modes of trade and travel on water,” over the relevant river seg­ ment “in [its] natural and ordinary condition.” Id., at 76 (internal quotation marks omitted). At a minimum, there­ fore, the party seeking to use present-day evidence for title Cite as: 565 U. S. ____ (2012) 23 Opinion of the Court purposes must show: (1) the watercraft are meaningfully similar to those in customary use for trade and travel at the time of statehood; and (2) the river’s poststatehood condition is not materially different from its physical con- dition at statehood. See also Oregon, supra, at 18 (find- ing that scientific and historical evidence showed that the physical condition of particular water bodies had not varied substantially since statehood in a way that might affect navigation). If modern watercraft permit navigabil­ ity where the historical watercraft would not, or if the river has changed in ways that substantially improve its navigability, then the evidence of present-day use has little or no bearing on navigability at statehood. The Montana Supreme Court opinion offered no indica­ tion that it made these necessary findings. The court concluded the evidence of present-day use of the Madison was probative of its susceptibility of use at statehood, but there is no apparent basis for its conclusion. 355 Mont., at 442–443, 438–439, 229 P.3d, at 449, 446–447. The court did not find the watercraft similar to those used at the time of statehood, and the State’s evidence of present-day use for recreational fishing did not indicate what types of boats are now used. App. 46–48. Modern recreational fishing boats, including inflatable rafts and lightweight canoes or kayaks, may be able to navigate waters much more shallow or with rockier beds than the boats custom­ arily used for trade and travel at statehood. As to the river’s physical condition, the Montana Su­ preme Court did not assess with care PPL’s evidence about changes to the river’s flow and the location and pattern of its channel since statehood. The affidavit of PPL’s expert in fluvial geomorphology—the study of river­ related landforms—at least suggests that as a result of PPL’s dams, the river has become “less torrential” in high flow periods and less shallow in low flow periods. App. 575–577 (Docket No. 170). Thus, the river may well be 24 PPL MONTANA, LLC v. MONTANA Opinion of the Court easier to navigate now than at statehood. The Montana Supreme Court altogether ignored the expert’s reasoning about the past condition of the river’s channels and the significance of that information for navigability. Further, contrary to the Montana Supreme Court’s suggestion, the expert’s affidavit was not mere evidence of change in “seasonal variations” of water depth. 355 Mont., at 440, 229 P.3d, at 448. It provided meaning­ ful evidence that the river’s conditions had changed since statehood in ways that made present-day navigation of the river easier in all seasons than it was at the relevant time. While the Montana court was correct that a river need not be susceptible of navigation at every point during the year, neither can that susceptibility be so brief that it is not a commercial reality. Against this background, the present­ day recreational use of the river did not bear on navigabil­ ity for purposes of title under the equal-footing doctrine. The Montana Supreme Court’s reliance upon the State’s evidence of present-day, recreational use, at least without further inquiry, was wrong as a matter of law. C The above analysis is sufficient to require reversal of the grant of summary judgment to Montana. Therefore, the Court declines to decide whether the Montana Supreme Court further erred as to the burden of proof regarding navigability. D As a final contention, the State of Montana suggests that denying the State title to the riverbeds here in dis­ pute will undermine the public trust doctrine, which con­ cerns public access to the waters above those beds for purposes of navigation, fishing, and other recreational uses. Brief for Respondent 20, 24–26. This suggestion underscores the State’s misapprehension of the equal Cite as: 565 U. S. ____ (2012) 25 Opinion of the Court footing and public trust doctrines. The public trust doctrine is of ancient origin. Its roots trace to Roman civil law and its principles can be found in the English common law on public navigation and fishing rights over tidal lands and in the state laws of this coun­ try. See Coeur d’Alene, 521 U.S., at 284–286; Illinois Central R. Co. v. Illinois, 146 U.S. 387, 458 (1892); D. Slade, Putting the Public Trust Doctrine to Work 3–8, 15–24 (1990); see, e.g., National Audubon Soc. v. Superior Court of Alpine Cty., 33 Cal. 3d 419, 433–441, 658 P.2d 709, 718–724 (1983); Arnold v. Mundy, 6 N. J. L. 1, 9–10 (1821). Unlike the equal-footing doctrine, however, which is the constitutional foundation for the navigability rule of riverbed title, the public trust doctrine remains a matter of state law, see Coeur d’Alene, supra, at 285 (Illinois Central, a Supreme Court public trust case, was “ ‘neces­ sarily a statement of Illinois law’ ”); Appleby v. City of New York, 271 U.S. 364, 395 (1926) (same), subject as well to the federal power to regulate vessels and navigation under the Commerce Clause and admiralty power. While equal­ footing cases have noted that the State takes title to the navigable waters and their beds in trust for the public, see Shively, 152 U.S., at 49, 15–17, 24, 46, the contours of that public trust do not depend upon the Constitution. Under accepted principles of federalism, the States retain residual power to determine the scope of the public trust over waters within their borders, while federal law deter­ mines riverbed title under the equal-footing doctrine. V As the litigation history of this case shows, Montana filed its claim for riverbed rent over a century after the first of the dams was built upon the riverbeds. Montana had not sought compensation before then, despite its full awareness of PPL’s hydroelectric projects and despite the State’s own participation in the projects’ federal licensing 26 PPL MONTANA, LLC v. MONTANA Opinion of the Court process. While this Court does not reach the question, it may be that by virtue of the State’s sovereignty, neither laches nor estoppel could apply in a strict sense to bar the State’s much belated claim. Still, the reliance by PPL and its predecessors in title upon the State’s long failure to assert title is some evidence to support the conclusion that the river segments were nonnavigable for purposes of the equal-footing doctrine. The Montana Supreme Court’s ruling that Montana owns and may charge for use of riverbeds across the State was based upon an infirm legal understanding of this Court’s rules of navigability for title under the equal­ footing doctrine. As the Court said in Brewer-Elliott, “It is not for a State by courts or legislature, in dealing with the general subject of beds or streams, to adopt a retroactive rule for determining navigability which . . . would enlarge what actually passed to the State, at the time of her ad­ mission, under the constitutional rule of equality here invoked.” 260 U.S., at 88. * * * The judgment of the Montana Supreme Court is re­ versed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered

This case concerns three rivers which flow through Montana and then beyond its borders. The question is whether discrete, identifiable segments of these rivers in Montana were nonnavigable, as federal law defines that concept for purposes of determining whether the State acquired title to the riverbeds underlying those segments, when the State entered the Union in 1889. Montana contends that the rivers must be found navigable at the disputed locations. From this premise, the State asserts that in 1889 it gained title to the disputed riverbeds under the constitutional equal-footing doctrine. Based on its title claims, Montana sought compensation from PPL Montana, LLC, a power company, for its use of the riv­ erbeds for hydroelectric projects. The Montana courts granted summary judgment on title to Montana, awarding it $41 million in rent for the riverbeds for the period from 2000 to 2007 alone. That judgment must be reversed. I The three rivers in question are the Missouri River, the Madison River, and the Clark Fork River. The Missouri and the Madison are on the eastern side of the Continen­ 2 PPL MONTANA, LLC v. MONTANA Opinion of the Court tal Divide. The Madison flows into the Missouri, which then continues at length to its junction with the Missis­ sippi River. The Clark Fork River is on the western side of the Continental Divide. Its waters join the Columbia River system that flows into the Pacific Ocean. Each river shall be described in somewhat more detail. A The Missouri River originates in Montana and traverses seven States before a point just north of St. Louis where it joins the Mississippi. 19 Encyclopedia Americana 270 (int’l ed. 2006). If considered with the continuous path formed by certain streams that provide the Missouri Riv­ er’s headwaters, the Missouri is over 2,500 miles long, the longest river in the United States. The Missouri River’s basin (the land area drained by the river) is the second largest in the Nation, surpassed only by the Mis­ sissippi River basin of which it is a part. Rivers of North America 427 (A. Benke & C. Cushing eds. 2005) (hereinaf­ ter Rivers of North America). As a historical matter, the river shifted and flooded often, and contained many sand­ bars, islands, and unstable banks. at 432–433. The river was once described as one of the most “variable beings in creation,” as “inconstant [as] the action of the jury,” Sioux City Register (Mar. 28, 1868); and its high quantity of downstream sediment flow spawned its nick­ name, the “Big Muddy,” Rivers of North America 433. The upstream part of the Missouri River in Montana, known as the Upper Missouri River, is better charac­ terized as rocky rather than muddy. While one usually thinks of the Missouri River as flowing generally south, as indeed it does beginning in North Dakota, the Upper Missouri in Montana flows north from its principal head­ waters at Three Forks, which is located about 4,000 feet above sea level in the Rocky Mountain area of southwest­ ern Montana. It descends through scenic mountain ter­ Cite as: 565 U. S. (2012) 3 Opinion of the Court rain including the deep gorge at the Gates of the Moun­ tains; turns eastward through the Great Falls reach, cascading over a roughly 10-mile stretch of cataracts and rapids over which the river drops more than 400 feet; and courses swiftly to Fort Benton, a 19th-century fur trading post, before progressing farther east into North Dakota and on to the Great Plains. 19 Encyclopedia Americana, ; 8 New Encyclopaedia Britannica 190 (15th ed. 2007) (hereinafter Encyclopaedia Britannica); 2 Co­ lumbia Gazetteer of the World 2452 (2d ed. 2008) (here- inafter Columbia Gazetteer); F. Montana and the Northwest Territory 75 (1879). In 1891, just after Mon­ tana became a State, the Upper Missouri River above Fort Benton was “seriously obstructed by numerous rapids and rocks,” and the 168-mile portion flowing eastward “[f]rom Fort Benton to Carroll, Mont., [was] called the rocky riv­ er.” Annual Report of the Chief of Engineers, U. S. Army (1891), in 2 H. R. Exec. Doc. No. 1, 52d Cong., 1st Sess., pt. 2, pp. 275–276 (1891) (hereinafter H. R. Exec. Doc.). The Great Falls exemplify the rocky, rapid character of the Upper Missouri. They consist of five cascade-like waterfalls located over a stretch of the Upper Missouri leading downstream from the city of Great Falls in mid­ western Montana. The waterfall farthest downstream, and the one first encountered by Meriwether Lewis and William Clark when they led their remarkable expedition through the American West in 1805, is the eponymous “Great Falls,” the tallest of the five falls at 87 feet. W. Clark, Dear Brother: Letters of William Clark to Jonathan Clark 109, n. 5 (J. Holmberg ed. 2002) (hereinafter Dear Brother). Lewis recorded observations of this “sublimely grand specticle”: “[T]he whole body of water passes with incredible swiftness. over a precipice of at least eighty feet [T]he irregular and somewhat projecting rocks 4 PPL MONTANA, LLC v. MONTANA Opinion of the Court below receives the water and brakes it into a per­ fect white foam which assumes a thousand forms in a moment sometimes flying up in jets [that] are scarcely formed before large roling bodies of the same beaten and foaming water is thrown over and conceals them. [T]he [rainbow] reflection of the sun on the sprey or mist adds not a little to the beauty of this majestically grand senery.” The Lewis and Clark Journals: An American Epic of Discovery 129 (G. Moulton ed. 2003) (hereinafter Lewis and Clark Jour­ nals); The Journals of Lewis and Clark 136–138 If one proceeds alongside the river upstream from Great Falls, as Lewis did in scouting the river for the expedition, the other four falls in order are “Crooked Falls” (19 feet high); “Rainbow Falls” (48 feet), which Lewis called “one of the most bea[u]tifull objects in nature”; “Colter Falls” (7 feet), and “Black Eagle Falls” (26 feet). See Lewis and Clark Journals 131–132; Dear Brother 109, n. 5; P. Cut- right, Lewis & Clark: Pioneering Naturalists 1–156 (2003). Despite the falls’ beauty, Lewis could see that their steep cliffs and swift waters would impede progress on the river, which had been the expedition’s upstream course for so many months. The party proceeded over a more circuitous land route by means of portage, circum­ venting the Great Falls and their surrounding reach of river before returning to travel upon the river about a month later. See Lewis and Clark Journals 126–152. The Upper Missouri River, both around and further upstream of the Great Falls, shares the precipitous and fast-moving character of the falls themselves. As it moves downstream over the Great Falls reach, a 17-mile stretch that begins somewhat above the head of Black Eagle Falls, the river quickly descends about 520 feet in elevation, see Montana Power v. Federal Power Comm’n, 1 F. 2d Cite as: 565 U. S. (2012) 5 Opinion of the Court 491 ; ¶¶29–30, 108–109, 355 Mont. 402, 416, dropping over 400 feet within 10 miles from the first rapid to the foot of Great Falls, Parker, Black Eagle Falls Dam, 27 Transactions of the Am. Soc. of Civil Engineers 56 In 1879, that stretch was a “constant succession of rapids and falls.” ; see also 9 The Journals of the Lewis & Clark Expedition 171 (G. Moulton ed. 1995) (hereinafter Journals of the Lewis & Clark Expedition) (“a continued rapid the whole way for 17 miles”). Lewis noted the water was so swift over the area that buffalo were swept over the cataracts in “considerable quantities” and were “instantly crushed.” Lewis and Clark Journals 136– 137. Well above the Great Falls reach, the Stubbs Ferry stretch of the river from Helena to Cascade also had steep gradient and was “much obstructed by rocks and danger­ ous rapids.” Report of the Secretary of War, 2 H. R. Doc. No. 2, th Cong., 1st Sess., pt. 1, p. 301 (1895). B The second river to be considered is the Madison, one of the Missouri River’s headwater tributaries. Named by Lewis and Clark for then-Secretary of State James Madi­ son, the Madison River courses west out of the Northern Rocky Mountains of Wyoming and Montana in what is now Yellowstone National Park, then runs north and merges with the Jefferson and Gallatin Rivers at Three Forks, Montana, to form the Upper Missouri. Lewis and Clark Journals 158; Rivers of North America 459; 7 En- cyclopaedia Britannica 658; 2 Columbia Gazetteer 2242. Along its path, the Madison River flows through two lakes artificially created by dams built in canyons: Hebgen Lake and Ennis Lake. Federal Writers’ Project of the Work Projects Administration, Montana: A State Guide Book 356 (J. Stahlberg ed. 1949); R. Aarstad, E. Arguimbau, E. Baumler, C. Porsild, & B. Shovers, Montana Place Names 6 PPL MONTANA, LLC v. MONTANA Opinion of the Court from Alzada to Zortman: A Montana Historical Society Guide 166 (2009). C The third river at issue in this case is the Clark Fork. That river, which consists in large part of “long, narrow streams confined by mountainous terrain,” rises at an ele- vation of about 5,000 feet in the Silver Bow Mountains of southwestern Montana. 3 Encyclopaedia Britannica 352; Dept. of Interior, U. S. Geological Survey, J. Stevens & F. Henshaw, Surface Water Supply of the United States, 1907–8, Water-Supply Paper 252, pp. 81–82 (1910). The river flows northward for about 40 miles; turns northwest for a stretch; then turns abruptly north­ east for a short stint, by which time it has descended nearly 2,500 feet in altitude. It then resumes a north­ westward course until it empties into Lake Pend Oreille in northern Idaho, out of which flows a tributary to the Co­ lumbia River of the Pacific Northwest. ; 1 Columbia Gazetteer 816. The Clark Fork is “one of the wildest and most picturesque streams in the West,” marked by “many waterfalls and boxed gorges.” Federal Writers’ Projects of the Works Progress Administration, Idaho: A Guide in Word and Picture 230 Lewis and Clark knew of the Clark Fork River but did not try to navigate it, in part because the absence of salm­ on in one of its tributaries made Lewis believe “ ‘there must be a considerable fall in [the river] below.’ ” H. Fritz, The Lewis and Clark Expedition 38–39 (2004). This was correct, for shortly before the Clark Fork exits to Idaho from the northwest corner of Montana, “the waters of the river dash madly along their rocky bed,” dropping over 30 feet in a half-mile as they rush over falls and rapids in­ cluding a “foaming waterfall” now known as Thompson Falls. O. Rand, A Vacation Excursion: From Massachu­ setts Bay to Puget Sound 176–177 ; C. Kirk, A Cite as: 565 U. S. (2012) 7 Opinion of the Court History of the Montana Power Company 231 (2008). II Petitioner PPL Montana, LLC (PPL), owns and operates hydroelectric facilities that serve Montana residents and businesses. Ten of its facilities are built upon riverbeds underlying segments of the Upper Missouri, Madison, and Clark Fork Rivers. It is these beds to which title is disputed. On the Upper Missouri River, PPL has seven hydroelec­ tric dams. Five of them are along the Great Falls reach, including on the three tallest falls; and the other two are in canyons upstream on the Stubbs Ferry stretch. See K. Robison, Cascade County and Great Falls 56 (2011); Aar­ stad et 5–6. On the Madison River, two hydroelectric dams are located in steep can­ yons. On the Clark Fork River, a hydroelectric facility is constructed on the Thompson Falls. The dams on the Upper Missouri and Madison are called the Missouri-Madison project. The Thompson Falls facility is called the Thompson Falls project. Both projects are licensed by the Federal Energy Regulatory Commis­ sion. PPL acquired them in 1999 from its predecessor, the Montana Power –, 229 P.3d, at 426. PPL’s power facilities have existed at their locations for many decades, some for over a century. See Robison, Until recently, these facilities were operated without title­ based objection by the State of Montana. The State was well aware of the facilities’ existence on the riverbeds— indeed, various Montana state agencies had participated in federal licensing proceedings for these hydroelectric projects. See, e.g., Montana Power 8 F. P. C. 751, 752 (1949) (Thompson Falls project); Montana Power 27 (Ryan Dam of 8 PPL MONTANA, LLC v. MONTANA Opinion of the Court Missouri-Madison project). Yet the State did not seek, and accordingly PPL and its predecessor did not pay, compen­ sation for use of the 355 Mont., 6, 229 P. 3d, at 427. Instead, the understanding of PPL and the United States is that PPL has been paying rents to the United States for use of those riverbeds, as well as for use of river uplands flooded by PPL’s projects. Reply Brief for Petitioner 4; App. to Supp. Brief for Petitioner 4–5; Brief for United States as Amicus Curiae 3, n. 3. In 2003, parents of Montana schoolchildren sued PPL in the United States District Court for the District of Mon­ tana, arguing that PPL had built its facilities on riverbeds that were state owned and part of Montana’s school trust 355 Mont., 6, Prompted by the litigation, the State joined the lawsuit, for the first time seeking rents for PPL’s riverbed use. The case was dismissed in September 2005 for lack of diversity juris- diction. Dolan v. PPL Montana, LLC, No. 9:03–cv–167 (D Mont., Sept. 27, 2005). PPL and two other power companies sued the State of Montana in the First Judicial District Court of Montana, arguing that the State was barred from seeking compensa­ tion for use of the 355 Mont., 7–, 229 P. 3d, at 427–428. By counterclaim, the State sought a declaration that under the equal-footing doctrine it owns the riverbeds used by PPL and can charge rent for their use. 8, The Montana trial court granted summary judgment to Montana as to navi­ gability for purposes of determining riverbed title. at –409, 413–, 431–432; App. to Pet. for Cert. 3. The court decided that the State owned the –, The court ordered PPL to pay $40,956,180 in rent for use of the riverbeds between 2000 and 2007. at 431–432, –443. Whether a lease for future periods would commence, and, if so, at what rental rate, seems to Cite as: 565 U. S. (2012) 9 Opinion of the Court have been left to the discretion of the Montana Board of Land Commissioners. App. to Pet. for Cert. 128–129. In a decision by a divided court, the Montana Supreme Court affirmed. –, – 461; at The court reasoned from the background principle that “navigability for title purposes is very liberally construed.” It dismissed as having “limited applicability” this Court’s approach of assessing the navigability of the disputed segment of the river ra­ ther than the river as a whole. at 441–, 229 P. 3d, at 448–449. The Montana court accepted that certain relevant stretches of the rivers were not navigable but declared them “merely short interruptions” insufficient as a matter of law to find nonnavigability, since traffic had circumvented those stretches by overland 449. Placing extensive reliance upon evidence of present-day use of the Madison River, the court found that river navigable as a matter of law at the time of statehood. Justice Rice dissented. at He stated that “courts are not to assume an entire river is navigable merely because certain reaches of the river are navigable.” 229 P. 3d, at The majority erred, he wrote, in rejecting the “section-by-section ap­ proach” and “declaring, as a matter of law, that the reaches claimed by PPL to be non-navigable are simply too ‘short’ to matter,” when in fact PPL’s evidence showed the “disputed reaches of the rivers were, at the time of state­ hood, non-navigable.” at 463–466, 476–477, 229 P.3d, at –, 470. This Court granted certiorari, 564 U. S. (2011), and now reverses the judgment. 10 PPL MONTANA, LLC v. MONTANA Opinion of the Court III A PPL contends the opinion of the Montana Supreme Court is flawed in three respects: first, the court’s failure to consider with care the navigability of the particular river segments to which title is disputed, and its disregard of the necessary overland portage around some of those segments; second, its misplaced reliance upon evidence of present-day, recreational use; and third, what the state court itself called its liberal construction of the navigabil­ ity test, which did not place the burden of proof upon the State to show navigability. Brief for Petitioner 26. The United States as amicus is in substantial agreement with PPL’s arguments, although it offers a more extended dis­ cussion with respect to evidence of present-day, recrea­ tional use. Brief for United States 27–33. It is appropriate to begin the analysis by discussing the legal principles that control the case. B The rule that the States, in their capacity as sovereigns, hold title to the beds under navigable waters has origins in English common law. See v. Bowlby, 152 U.S. 1, 13 (1894). A distinction was made in England between waters subject to the ebb and flow of the tide (royal rivers) and nontidal waters (public highways). With respect to royal rivers, the Crown was presumed to hold title to the riverbed and soil, but the public retained the right of passage and the right to fish in the stream. With respect to public highways, as the name suggests, the public also retained the right of water passage; but title to the riv­ erbed and soil, as a general matter, was held in private ownership. Riparian landowners shared title, with each owning from his side to the center thread of the stream, as well as the exclusive right to fish there. See Idaho v. Coeur d’ Tribe of Idaho, Cite as: 565 U. S. (2012) 11 Opinion of the Court (summarizing J. Angell, A Treatise on the Common Law in Relation to Water-Courses –18 (1824)); 3 J. Kent, Commentaries on American Law 528–529 (9th ed. 18). While the tide-based distinction for bed title was the initial rule in the 13 Colonies, after the Revolution Ameri­ can law moved to a different standard. Some state courts came early to the conclusion that a State holds presump­ tive title to navigable waters whether or not the waters are subject to the ebb and flow of the tide. See, e.g., Car- ; Executors of Cates v. Wadlington, 12 S. C. L. 580 (1822); Wilson v. Forbes, 13 N. C. 30 (1828); ; The tidal rule of “navigability” for sovereign ownership of riverbeds, while perhaps appropriate for England’s dominant coastal geog­ raphy, was ill suited to the United States with its vast number of major inland rivers upon which navigation could be sustained. See L. Houck, Law of Navigable Riv­ ers 26–27, 31–35 (1868); 667–669 (1891). By the late 19th century, the Court had recognized “the now prevailing doctrine” of state sovereign “title in the soil of rivers really navigable.” at 31; see (“In this country, as a general thing, all waters are deemed navigable which are really so”). This title rule became known as “navigability in fact.” The rule for state riverbed title assumed federal consti­ tutional significance under the equal-footing doctrine. In 1842, the Court declared that for the 13 original States, the people of each State, based on principles of sovereign­ ty, “hold the absolute right to all their navigable waters and the soils under them,” subject only to rights surren­ dered and powers granted by the Constitution to the Federal Martin v. Lessee of Waddell, 16 Pet. 367, 410 (1842). In a series of 19th-century cases, the Court determined that the same principle applied to 12 PPL MONTANA, LLC v. MONTANA Opinion of the Court States later admitted to the Union, because the States in the Union are coequal sovereigns under the Constitution. See, e.g., Lessee of 228–229 ; 183 (1891); at 26–31; see United States v. Texas, These precedents are the basis for the equal-footing doctrine, under which a State’s title to these lands was “conferred not by Congress but by the Constitution itself.” ex rel. State Land Bd. v. Corvallis Sand & Gravel U.S. 363, It follows that any ensuing questions of navigability for de- termining state riverbed title are governed by federal law. See, e.g., United 75 (1931); United The title consequences of the equal-footing doctrine can be stated in summary form: Upon statehood, the State gains title within its borders to the beds of waters then navigable although that is not relevant in this case). It may allocate and govern those lands according to state law subject only to “the para­ mount power of the United States to control such waters for purposes of navigation in interstate and foreign com­ merce.” at ; see ; United The United States retains any title vested in it before statehood to any land beneath waters not then navigable (and not tidally influ­ enced), to be transferred or licensed if and as it chooses. See ; at Returning to the “navigability in fact” rule, the Court has explained the elements of this test. A basic formula­ tion of the rule was set forth in The Daniel Ball, 10 Wall. 557 (1871), a case concerning federal power to regulate navigation: Cite as: 565 U. S. (2012) 13 Opinion of the Court “Those rivers must be regarded as public navigable rivers in law which are navigable in fact. And they are navigable in fact when they are used, or are sus­ ceptible of being used, in their ordinary condition, as highways for commerce, over which trade and travel are or may be conducted in the customary modes of trade and travel on water.” The Daniel Ball formulation has been invoked in con­ sidering the navigability of waters for purposes of as­ sessing federal regulatory authority under the Constitu­ tion, and the application of specific federal statutes, as to the waters and their beds. See, e.g., ibid.; The Montello, ; United (Fed­ eral Power Act); 7 U.S. 715, 730–731 (2006) (plurality opinion) (Clean Water Act); 1 (KENNEDY, J., concurring in judgment) It has been used as well to determine questions of title to water beds under the equal-footing doctrine. See ; 586 ; Holt State It should be noted, however, that the test for navigability is not applied in the same way in these distinct types of cases. Among the differences in application are the following. For state title under the equal-footing doctrine, naviga­ bility is determined at the time of statehood, see and based on the “natural and ordinary con- dition” of the water, see In contrast, admiralty jurisdiction extends to water routes made navigable even if not formerly so, see, e.g., Ex parte Boyer, ; and federal regulatory authority encompasses waters that only recently have become navigable, see, e.g., Philadelphia v. Stimson, were once navigable but are no longer, see Economy Light & Power PPL MONTANA, LLC v. MONTANA Opinion of the Court or are not navigable and never have been but may become so by reasonable improvements, see Appalachian Elec. Power 7–. With respect to the federal com­ merce power, the inquiry regarding navigation historically focused on interstate commerce. See The Daniel Ball, 4. And, of course, the commerce power ex­ tends beyond navigation. See Kaiser In contrast, for title purposes, the inquiry depends only on navigation and not on interstate travel. See This list of differences is not exhaustive. Indeed, “[e]ach application of [the Daniel Ball] test is apt to uncover variations and refinements which require further elaboration.” Ap- palachian Elec. Power 6. IV A The primary flaw in the reasoning of the Montana Su­ preme Court lies in its treatment of the question of river segments and overland To determine title to a riverbed under the equal-footing doctrine, this Court considers the river on a segment­ by-segment basis to assess whether the segment of the river, under which the riverbed in dispute lies, is navigable or not. In United for example, the Court noted, “the controversy relates only to the sections of the riv­ ers which are described in the complaint, and the Master has limited his findings and conclusions as to navigability accordingly. The propriety of this course, in view of the physical characteristics of the streams, is apparent. Even where the navigability of a river, speaking generally, is a matter of common knowledge, and hence one of which judicial notice may be taken, it may yet be a question, to be determined upon evi­ Cite as: 565 U. S. (2012) 15 Opinion of the Court dence, how far navigability extends.” The Court went on to conclude, after reciting and as­ sessing the evidence, that the Colorado River was naviga­ ble for its first roughly 4-mile stretch, nonnavigable for the next roughly 36-mile stretch, and navigable for its remain­ ing 9 miles. at 73–74, 79–81, 89. The Court noted the importance of determining “the exact point at which navigability may be deemed to end.” Similarly, in Brewer-Elliott Oil & Gas v. United States, the Court examined the segment of the Arkansas River that ran along the Osage Indian Reservation, assessing whether the Arkansas River was “navigable in fact at the locus in quo.” The Court concluded that the United States originally, and the Osag­ es as its grantees, unequivocally held title to the riverbeds because the Arkansas River “is and was not navigable at the place where the river bed lots, here in controversy, are.” The Court found the segment of river along the reservation to be nonnavigable even though a segment of the river that began further downstream was navigable. See also 587–588, 589–591 (noting that “how far up the streams navigability extended was not known”; assessing separate­ ly the segments of the Red River above and below its confluence with the Washita River within ’s borders; and concluding that neither segment, and hence “no part of the river within” was navigable). The Montana Supreme Court discounted the segment­ by-segment approach of this Court’s cases, calling it “a piecemeal classification of navigability—with some stretches declared navigable, and others declared non­ navigable.” –, –449. This was error. The segment-by-segment approach to navigability for title is well settled, and it should not be disregarded. A key justification for sovereign ownership of 16 PPL MONTANA, LLC v. MONTANA Opinion of the Court navigable riverbeds is that a contrary rule would allow private riverbed owners to erect improvements on the riverbeds that could interfere with the public’s right to use the waters as a highway for commerce. While the Federal Government and States retain regulatory power to protect public navigation, allocation to the State of the beds un­ derlying navigable rivers reduces the possibility of conflict between private and public interests. See at 82–83; By contrast, segments that are nonnavigable at the time of statehood are those over which commerce could not then occur. Thus, there is no reason that these segments also should be deemed owned by the State under the equal-footing doctrine. Practical considerations also support segmentation. Physical conditions that affect navigability often vary significantly over the length of a This is particularly true with longer rivers, which can traverse vastly different terrain and the flow of which can be affected by varying local climates. The Missouri River provides an excellent example: Between its headwaters and mouth, it runs for over 2,000 miles out of steep mountains, through canyons and upon rocky beds, over waterfalls and rapids, and across sandy plains, capturing runoff from snow melt and farmland rains alike. These shifts in physical conditions provide a means to determine appropriate start points and end points for the segment in question. Topographical and geographical indicators may assist. See, e.g., at 77–80 (gradient changes); (location of tributary providing additional flow). A segment approach to riverbed title allocation under the equal-footing doctrine is consistent with the manner in which private parties seek to establish riverbed title. For centuries, where title to the riverbed was not in the sover­ eign, the common-law rule for allocating riverbed title among riparian landowners involved apportionment de­ fined both by segment (each landowner owns bed and soil Cite as: 565 U. S. (2012) 17 Opinion of the Court along the length of his land adjacent) and thread (each landowner owns bed and soil to the center of the stream). See J. Angell, A Treatise on the Law of Watercourses 18 (6th ed. 1869); 474 (No.312) (CC RI 1827) (Story, J.). Montana, moreover, cannot suggest that segmentation is inadministrable when the state courts managed to divide up and apportion the underlying riverbeds for purposes of determining their value and the corresponding rents owed by PPL. The Montana Supreme Court, relying upon de- cided that the segment-by-segment approach is inapplicable here because it “does not apply to ‘short interruption[s] of navigability in a stream otherwise navigable.’ ” 355 Mont., at (quoting ). This was mistaken. In this Court noted in pass­ ing that the facts of the case concerned “long reaches with particular characteristics of navigability or non­ navigability” rather than “short interruption[s].” at 77. The Court in did not say the case would have a different outcome if a “short interruption” were concerned. Even if the law might find some nonnavigable segments so minimal that they merit treatment as part of a longer, navigable reach for purposes of title under the equal­ footing doctrine, it is doubtful that any of the segments in this case would meet that standard, and one—the Great Falls reach—certainly would not. As an initial matter, the kinds of considerations that would define a de minimis exception to the segment-by-segment approach would be those related to principles of ownership and title, such as inadministrability of parcels of exceedingly small size, or worthlessness of the parcels due to overdivision. See Heller, The Tragedy of the Anticommons, 111 Harv. L. Rev. 621, 682–684 (1998) (explaining that dividing prop- erty into square-inch parcels, could, absent countervail- ing legal mechanisms, “paralyze the alienability of scarce 18 PPL MONTANA, LLC v. MONTANA Opinion of the Court resources or diminish their value too drastically”). An analysis of segmentation must be sensibly applied. A comparison of the nonnavigable segment’s length to the overall length of the stream, for instance, would be simply irrelevant to the issue at hand. A number of the segments at issue here are both dis­ crete, as defined by physical features characteristic of navigability or nonnavigability, and substantial, as a matter of administrability for title purposes. This is best illustrated by the Great Falls reach, which is 17 miles long and has distinct drops including five waterfalls and con­ tinuous rapids in between. There is plenty of reason to doubt that reach’s navigability based on the presence of the series of falls. There is also reason to think that title to that segment of bed would not be worthless or inadmin­ istrable. Indeed, the State sought and was awarded rent in the amount of $41 million for PPL’s various hydroelec­ tric facilities attached to the riverbeds, half of which are along the Great Falls reach. Applying its “short interruptions” approach, the Mon­ tana Supreme Court decided that the Great Falls reach was navigable because it could be managed by way of land route 449. The court noted in particular the portage of Lewis and Clark’s expedition. Yet that very portage re­ veals the problem with the Montana Supreme Court’s analysis. Leaving behind their larger boats, Lewis and Clark transported their supplies and some small canoes about 18 miles over land, which took at least 11 days and probably more. See Lewis and Clark Journals 126–152; 9 Journals of the Lewis & Clark Expedition 173; Dear Brother 109. Even if portage were to take travelers only one day, its significance is the same: it demonstrates the need to bypass the river segment, all because that part of the river is nonnavigable. Thus, the Montana Supreme Court was wrong to state, with respect to the Great Falls Cite as: 565 U. S. (2012) 19 Opinion of the Court reach and other stretches of the rivers in question, that portages “are not sufficient to defeat a finding of navigabil­ ity.” 355 Mont., In most cases, they are, because they require transportation over land rather than over the water. This is such a case, at least as to the Great Falls reach. In reaching its conclusion that the necessity of portage does not undermine navigability, the Montana Supreme Court misapplied this Court’s decision in The Montello, 20 Wall. 430. See 355 Mont., The consideration of portage in The Montello was for a differ­ ent purpose. The Court did not seek to determine whether the river in question was navigable for title purposes but instead whether it was navigable for purposes of deter­ mining whether boats upon it could be regulated by the Federal 20 Wall., 445. The primary focus in The Montello was not upon navigability in fact but upon whether the river was a “navigable water of the United States.” 443. The latter inquiry is doctrinally distinct. It turns upon whether the river “forms by itself, or by its connection with other waters, a continued highway over which commerce is, or may be, carried with other States or foreign countries in the cus­ tomary modes in which such commerce is conducted by water.” (citing The Daniel Ball, ). It is language similar to “continued highway” that Mon­ tana urges the Court to import into the title context in lieu of the Court’s established segmentation approach. Brief for Respondent 42–43, n. 16. The Montello reasonably concluded that the portages required in that case did not prevent the river from being part of a channel of interstate commerce. Portages con­ tinued that channel because goods could be successfully transported interstate, in part upon the waters in ques­ tion. This provided sufficient basis to regulate steamboats at places where those boats could and did, in fact, navigate 20 PPL MONTANA, LLC v. MONTANA Opinion of the Court portions of the Here, by contrast, the question regards ownership of the bed under river segments that the Montana Supreme Court, by calling them “interruptions in the navigation,” 355 Mont., at acknowledges were nonnavigable. The reasoning and the inquiry of The Montello does not control the outcome where the quite different concerns of the riverbed title context apply. Having clarified that portages may defeat navigability for title purposes, and do so with respect to the Great Falls reach, the Court sees no evidence in the record that could demonstrate that the Great Falls reach was navigable. Montana does not dispute that overland portage was necessary to traverse that reach. Indeed, the State admits “the falls themselves were not passable by boat at state­ hood.” Brief for Respondent 10. And the trial court noted the falls had never been navigated. App. to Pet. for Cert. 137. Based on these statements, this Court now con­ cludes, contrary to the Montana Supreme Court’s decision, that the 17-mile Great Falls reach, at least from the head of the first waterfall to the foot of the last, is not navigable for purposes of riverbed title under the equal-footing doctrine. This Court also determines, based on evidence in the record, that there is a significant likelihood that some of the other river stretches in dispute also fail the federal test of navigability for the purpose of determining title. For example, as to the disputed segment of the Clark Fork River, the Montana Supreme Court incorrectly stated the sole evidence for nonnavigability “consists of conclusory statements without any specific factual support.” 355 Mont., at In fact, PPL introduced a report of the U. S. Army Corps of Engineers from 1891, two years after Montana’s date of statehood, documenting that the portion of the Clark Fork river between Missoula and Lake Pend Oreille (which includes the location of Cite as: 565 U. S. (2012) 21 Opinion of the Court PPL’s Thompson Falls facility) had a fall of about 1,100 feet in 250 miles and “is a mountain torrential stream, full of rocks, rapids, and falls, utterly unnavigable, and in- capable of being made navigable except at an enormous cost.” 2 H. R. Exec. Doc., pt. 5, at 3250; see App. 379–380 (Docket No. 169). The report based its conclusions on various failed attempts to navigate the It found the Thompson Falls “a complete obstruction to navigation” and the river around that area “exceedingly rapid, rough, and full of rocks.” 2 H. R. Exec. Doc., pt. 5, at 3251. This was consistent with a 1910 Federal District Court decree. The decree adjudicated a title dispute between two private parties over the riverbed near and under Thompson Falls and declared the river at that place “was and is a non­ navigable stream incapable of carrying the products of the country in the usual manner of water transportation.” Steele v. Donlan, Equity No. 950 (CC D Mont., July 19, 1910), p. 1; see App. 380–381 (Docket No. 169). While the ultimate decision as to this and the other disputed river stretches is to be determined, in the first instance, by the Montana courts upon remand, the relevant evidence should be assessed in light of the principles discussed in this opinion. B The Montana Supreme Court further erred as a matter of law in its reliance upon the evidence of present-day, primarily recreational use of the Madison River. Error is not inherent in a court’s consideration of such evidence, but the evidence must be confined to that which shows the river could sustain the kinds of commercial use that, as a realistic matter, might have occurred at the time of state­ hood. Navigability must be assessed as of the time of statehood, and it concerns the river’s usefulness for “ ‘trade and travel,’ ” rather than for other purposes. See 283 U.S., –76. Mere use by initial explorers or trap­ 22 PPL MONTANA, LLC v. MONTANA Opinion of the Court pers, who may have dragged their boats in or alongside the river despite its nonnavigability in order to avoid getting lost, or to provide water for their horses and them­ selves, is not itself enough. See 295 U.S., at 20–21 (evidence that “trappers appear to have waded or walked” through the river, dragging their boats rather than floating them, had “no bearing on navigability”). True, river segments are navigable not only if they “[were] used,” but also if they “[were] susceptible of being used,” as highways of commerce at the time of statehood. Evidence of recreational use, depending on its nature, may bear upon susceptibility of commercial use at the time of statehood. See Appalachian Elec. Power 311 U.S., at 416 (“[P]ersonal or private use by boats demonstrates the availability of the stream for the simpler types of commer­ cial navigation”); (fact that actual use has “been more of a private nature than of a public, commercial sort cannot be regarded as controlling”). Similarly, poststatehood evidence, depending on its na­ ture, may show susceptibility of use at the time of state­ hood. See at 82–83 (“[E]xtensive and continued [historical] use for commercial purposes” may be the “most persuasive” form of evidence, but the “crucial question” is the potential for such use at the time of statehood, rather than “the mere manner or extent of actual use”). Evidence of present-day use may be considered to the extent it informs the historical determination whether the river segment was susceptible of use for commercial navi­ gation at the time of statehood. For the susceptibility analysis, it must be determined whether trade and travel could have been conducted “in the customary modes of trade and travel on water,” over the relevant river seg­ ment “in [its] natural and ordinary condition.” At a minimum, there­ fore, the party seeking to use present-day evidence for title Cite as: 565 U. S. (2012) 23 Opinion of the Court purposes must show: (1) the watercraft are meaningfully similar to those in customary use for trade and travel at the time of statehood; and (2) the river’s poststatehood condition is not materially different from its physical con- dition at statehood. See also (find- ing that scientific and historical evidence showed that the physical condition of particular water bodies had not varied substantially since statehood in a way that might affect navigation). If modern watercraft permit navigabil­ ity where the historical watercraft would not, or if the river has changed in ways that substantially improve its navigability, then the evidence of present-day use has little or no bearing on navigability at statehood. The Montana Supreme Court opinion offered no indica­ tion that it made these necessary findings. The court concluded the evidence of present-day use of the Madison was probative of its susceptibility of use at statehood, but there is no apparent basis for its conclusion. 355 Mont., at –443, –, 446–447. The court did not find the watercraft similar to those used at the time of statehood, and the State’s evidence of present-day use for recreational fishing did not indicate what types of boats are now used. App. 46–48. Modern recreational fishing boats, including inflatable rafts and lightweight canoes or kayaks, may be able to navigate waters much more shallow or with rockier beds than the boats custom­ arily used for trade and travel at statehood. As to the river’s physical condition, the Montana Su­ preme Court did not assess with care PPL’s evidence about changes to the river’s flow and the location and pattern of its channel since statehood. The affidavit of PPL’s expert in fluvial geomorphology—the study of river­ related landforms—at least suggests that as a result of PPL’s dams, the river has become “less torrential” in high flow periods and less shallow in low flow periods. App. 575–577 (Docket No. 170). Thus, the river may well be 24 PPL MONTANA, LLC v. MONTANA Opinion of the Court easier to navigate now than at statehood. The Montana Supreme Court altogether ignored the expert’s reasoning about the past condition of the river’s channels and the significance of that information for navigability. Further, contrary to the Montana Supreme Court’s suggestion, the expert’s affidavit was not mere evidence of change in “seasonal variations” of water depth. It provided meaning­ ful evidence that the river’s conditions had changed since statehood in ways that made present-day navigation of the river easier in all seasons than it was at the relevant time. While the Montana court was correct that a river need not be susceptible of navigation at every point during the year, neither can that susceptibility be so brief that it is not a commercial reality. Against this background, the present­ day recreational use of the river did not bear on navigabil­ ity for purposes of title under the equal-footing doctrine. The Montana Supreme Court’s reliance upon the State’s evidence of present-day, recreational use, at least without further inquiry, was wrong as a matter of law. C The above analysis is sufficient to require reversal of the grant of summary judgment to Montana. Therefore, the Court declines to decide whether the Montana Supreme Court further erred as to the burden of proof regarding navigability. D As a final contention, the State of Montana suggests that denying the State title to the riverbeds here in dis­ pute will undermine the public trust doctrine, which con­ cerns public access to the waters above those beds for purposes of navigation, fishing, and other recreational uses. Brief for Respondent 20, 24–26. This suggestion underscores the State’s misapprehension of the equal Cite as: 565 U. S. (2012) 25 Opinion of the Court footing and public trust doctrines. The public trust doctrine is of ancient origin. Its roots trace to Roman civil law and its principles can be found in the English common law on public navigation and fishing rights over tidal lands and in the state laws of this coun­ try. See Coeur d’, –286; Illinois Central R. v. Illinois, 6 U.S. 387, ; D. Slade, Putting the Public Trust Doctrine to Work 3–8, 15–24 (1990); see, e.g., National Audubon 33 C 3d 419, 433–441, 658 P.2d 709, 718–724 (1983); Arnold v. Mundy, 6 N. J. L. 1, 9–10 (1821). Unlike the equal-footing doctrine, however, which is the constitutional foundation for the navigability rule of riverbed title, the public trust doctrine remains a matter of state law, see Coeur d’, at (Illinois Central, a Supreme Court public trust case, was “ ‘neces­ sarily a statement of Illinois law’ ”); subject as well to the federal power to regulate vessels and navigation under the Commerce Clause and admiralty power. While equal­ footing cases have noted that the State takes title to the navigable waters and their beds in trust for the public, see 15–17, 24, 46, the contours of that public trust do not depend upon the Constitution. Under accepted principles of federalism, the States retain residual power to determine the scope of the public trust over waters within their borders, while federal law deter­ mines riverbed title under the equal-footing doctrine. V As the litigation history of this case shows, Montana filed its claim for riverbed rent over a century after the first of the dams was built upon the Montana had not sought compensation before then, despite its full awareness of PPL’s hydroelectric projects and despite the State’s own participation in the projects’ federal licensing 26 PPL MONTANA, LLC v. MONTANA Opinion of the Court process. While this Court does not reach the question, it may be that by virtue of the State’s sovereignty, neither laches nor estoppel could apply in a strict sense to bar the State’s much belated claim. Still, the reliance by PPL and its predecessors in title upon the State’s long failure to assert title is some evidence to support the conclusion that the river segments were nonnavigable for purposes of the equal-footing doctrine. The Montana Supreme Court’s ruling that Montana owns and may charge for use of riverbeds across the State was based upon an infirm legal understanding of this Court’s rules of navigability for title under the equal­ footing doctrine. As the Court said in Brewer-Elliott, “It is not for a State by courts or legislature, in dealing with the general subject of beds or streams, to adopt a retroactive rule for determining navigability which would enlarge what actually passed to the State, at the time of her ad­ mission, under the constitutional rule of equality here invoked.” * * * The judgment of the Montana Supreme Court is re­ versed, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered

Justice Kagan

majority

Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak

2012-06-18

https://www.courtlistener.com/opinion/802400/match-e-be-nash-she-wish-band-of-pottawatomi-indians-v-patchak/

https://www.courtlistener.com/api/rest/v3/clusters/802400/

2011-065

A provision of the Indian Reorganization Act (IRA), 25 U.S. C. §465, authorizes the Secretary of the Interior (Secretary) to acquire property “for the purpose of provid- ing land for Indians.” Ch. 576, §5, 48 Stat. 985. The Secretary here acquired land in trust for an Indian tribe seeking to open a casino. Respondent David Patchak lives near that land and challenges the Secretary’s decision in a suit brought under the Administrative Procedure Act (APA), 5 U.S. C. §701 et seq. Patchak claims that the Secretary lacked authority under §465 to take title to the land, and alleges economic, environmental, and aesthetic harms from the casino’s operation. We consider two questions arising from Patchak’s ac- 2 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK Opinion of the Court tion. The first is whether the United States has sovereign immunity from the suit by virtue of the Quiet Title Act (QTA), 86 Stat. 1176. We think it does not. The second is whether Patchak has prudential standing to challenge the Secretary’s acquisition. We think he does. We therefore hold that Patchak’s suit may proceed. I The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (Band) is an Indian tribe residing in rural Michi- gan. Although the Band has a long history, the Depart- ment of the Interior (DOI) formally recognized it only in 1999. See 63 Fed. Reg. 56936 (1998). Two years later, the Band petitioned the Secretary to exercise her authority under §465 by taking into trust a tract of land in Wayland Township, Michigan, known as the Bradley Property. The Band’s application explained that the Band would use the property “for gaming purposes,” with the goal of generat- ing the “revenue necessary to promote tribal economic development, self-sufficiency and a strong tribal govern- ment capable of providing its members with sorely needed social and educational programs.” App. 52, 41.1 In 2005, after a lengthy administrative review, the Secretary announced her decision to acquire the Bradley Property in trust for the Band. See 70 Fed. Reg. 25596. In accordance with applicable regulations, the Secretary committed to wait 30 days before taking action, so that interested parties could seek judicial review. See ibid.; 25 CFR §151.12(b) (2011). Within that window, an organiza- tion called Michigan Gambling Opposition (or MichGO) —————— 1 Under the Indian Gaming Regulatory Act, 25 U.S. C. §§2701–2721, an Indian tribe may conduct gaming operations on “Indian lands,” §2710, which include lands “held in trust by the United States for the benefit of any Indian tribe,” §2703(4)(B). The application thus re- quested the Secretary to take the action necessary for the Band to open a casino. Cite as: 567 U. S. ____ (2012) 3 Opinion of the Court filed suit alleging that the Secretary’s decision violated environmental and gaming statutes. The Secretary held off taking title to the property while that litigation pro- ceeded. Within the next few years, a District Court and the D. C. Circuit rejected MichGO’s claims. See Michigan Gambling Opposition v. Kempthorne, 525 F.3d 23, 27–28 (CADC 2008); Michigan Gambling Opposition v. Norton, 477 F. Supp. 2d 1 (DC 2007). Shortly after the D. C. Circuit ruled against MichGO (but still before the Secretary took title), Patchak filed this suit under the APA advancing a different legal theory. He asserted that §465 did not authorize the Secretary to acquire property for the Band because it was not a feder- ally recognized tribe when the IRA was enacted in 1934. See App. 37. To establish his standing to bring suit, Patchak contended that he lived “in close proximity to” the Bradley Property and that a casino there would “destroy the lifestyle he has enjoyed” by causing “increased traffic,” “increased crime,” “decreased property values,” “an irre- versible change in the rural character of the area,” and “other aesthetic, socioeconomic, and environmental prob- lems.” Id., at 30–31. Notably, Patchak did not assert any claim of his own to the Bradley Property. He requested only a declaration that the decision to acquire the land violated the IRA and an injunction to stop the Secretary from accepting title. See id., at 38–39. The Band inter- vened in the suit to defend the Secretary’s decision. In January 2009, about five months after Patchak filed suit, this Court denied certiorari in MichGO’s case, 555 U.S. 1137, and the Secretary took the Bradley Property into trust. That action mooted Patchak’s request for an injunction to prevent the acquisition, and all parties agree that the suit now effectively seeks to divest the Federal Government of title to the land. See Brief for Match-E-Be- Nash-She-Wish Band of Pottawatomi Indians 17 (herein- after Tribal Petitioner); Brief for Federal Petitioners 11; 4 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK Opinion of the Court Brief for Respondent 24–25. The month after the Gov- ernment took title, this Court held in Carcieri v. Salazar, 555 U.S. 379, 382 (2009), that §465 authorizes the Secre- tary to take land into trust only for tribes that were “un- der federal jurisdiction” in 1934.2 The District Court dismissed the suit without consider- ing the merits (including the relevance of Carcieri), ruling that Patchak lacked prudential standing to challenge the Secretary’s acquisition of the Bradley Property. The court reasoned that the injuries Patchak alleged fell outside §465’s “zone of interests.” 646 F. Supp. 2d 72, 76 (DC 2009). The D. C. Circuit reversed that determination. See 632 F.3d 702, 704–707 (2011). The court also rejected the Secretary’s and the Band’s alternative argument that by virtue of the QTA, sovereign immunity barred the suit. See id., at 707–712. The latter ruling conflicted with decisions of three Circuits holding that the United States has immunity from suits like Patchak’s. See Neighbors for Rational Development, Inc. v. Norton, 379 F.3d 956, 961– 962 (CA10 2004); Metropolitan Water Dist. of South- ern Cal. v. United States, 830 F.2d 139, 143–144 (CA9 1987) (per curiam); Florida Dept. of Bus. Regulation v. Department of Interior, 768 F.2d 1248, 1253–1255 (CA11 1985). We granted certiorari to review both of the D. C. Circuit’s holdings, 565 U. S. ___ (2011), and we now affirm. II We begin by considering whether the United States’ sovereign immunity bars Patchak’s suit under the APA. —————— 2 The merits of Patchak’s case are not before this Court. We therefore express no view on whether the Band was “under federal jurisdiction” in 1934, as Carcieri requires. Nor do we consider how that question relates to Patchak’s allegation that the Band was not “federally recog- nized” at the time. Cf. Carcieri, 555 U. S., at 397–399 (BREYER, J., concurring) (discussing this issue). Cite as: 567 U. S. ____ (2012) 5 Opinion of the Court That requires us first to look to the APA itself and then, for reasons we will describe, to the QTA. We conclude that the United States has waived its sovereign immunity from Patchak’s action. The APA generally waives the Federal Government’s immunity from a suit “seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority.” 5 U.S. C. §702. That waiver would appear to cover Patchak’s suit, which objects to official action of the Secretary and seeks only non-monetary relief. But the APA’s waiver of immunity comes with an important carve-out: The waiver does not apply “if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought” by the plaintiff. Ibid. That provision prevents plaintiffs from exploiting the APA’s waiver to evade limitations on suit contained in other statutes. The question thus be- comes whether another statute bars Patchak’s demand for relief. The Government and Band contend that the QTA does so. The QTA authorizes (and so waives the Government’s sovereign immunity from) a particular type of action, known as a quiet title suit: a suit by a plaintiff asserting a “right, title, or interest” in real property that conflicts with a “right, title, or interest” the United States claims. 28 U.S. C. §2409a(d). The statute, however, contains an exception: The QTA’s authorization of suit “does not apply to trust or restricted Indian lands.” §2409a(a). According to the Government and Band, that limitation on quiet title suits satisfies the APA’s carve-out and so forbids Patchak’s suit. In the Band’s words, the QTA exception retains “the United States’ full immunity from suits seeking to chal- lenge its title to or impair its legal interest in Indian trust lands.” Brief for Tribal Petitioner 18. Two hypothetical examples might help to frame consid- 6 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK Opinion of the Court eration of this argument. First, suppose Patchak had sued under the APA claiming that he owned the Bradley Prop- erty and that the Secretary therefore could not take it into trust. The QTA would bar that suit, for reasons just sug- gested. True, it fits within the APA’s general waiver, but the QTA specifically authorizes quiet title actions (which this hypothetical suit is) except when they involve Indian lands (which this hypothetical suit does). In such a cir- cumstance, a plaintiff cannot use the APA to end-run the QTA’s limitations. “[W]hen Congress has dealt in par- ticularity with a claim and [has] intended a specified remedy”—including its exceptions—to be exclusive, that is the end of the matter; the APA does not undo the judgment. Block v. North Dakota ex rel. Board of Univ. and School Lands, 461 U.S. 273, 286, n. 22 (1983) (quoting H. R. Rep. No. 94–1656, p. 13 (1976)). But now suppose that Patchak had sued under the APA claiming only that use of the Bradley Property was caus- ing environmental harm, and raising no objection at all to the Secretary’s title. The QTA could not bar that suit because even though involving Indian lands, it asserts a grievance altogether different from the kind the statute concerns. JUSTICE SCALIA, in a former life as Assistant Attorney General, made this precise point in a letter to Congress about the APA’s waiver of immunity (which we hasten to add, given the author, we use not as legislative history, but only for its persuasive force). When a statute “is not addressed to the type of grievance which the plain- tiff seeks to assert,” then the statute cannot prevent an APA suit. Id., at 28 (May 10, 1976, letter of Assistant Atty. Gen. A. Scalia).3 —————— 3 According to the dissent, we should look only to the kind of relief a plaintiff seeks, rather than the type of grievance he asserts, in deciding whether another statute bars an APA action. See post, at 6 (opinion of SOTOMAYOR, J.). But the dissent’s test is inconsistent with the one we adopted in Block, which asked whether Congress had particularly dealt Cite as: 567 U. S. ____ (2012) 7 Opinion of the Court We think that principle controls Patchak’s case: The QTA’s “Indian lands” clause does not render the Govern- ment immune because the QTA addresses a kind of griev- ance different from the one Patchak advances. As we will explain, the QTA—whose full name, recall, is the Quiet Title Act—concerns (no great surprise) quiet title actions. And Patchak’s suit is not a quiet title action, because although it contests the Secretary’s title, it does not claim any competing interest in the Bradley Property. That fact makes the QTA’s “Indian lands” limitation simply inappo- site to this litigation. In reaching this conclusion, we need look no further than the QTA’s text. From its title to its jurisdictional grant to its venue provision, the Act speaks specifically and repeatedly of “quiet title” actions. See 86 Stat. 1176 (“An Act [t]o permit suits to adjudicate certain real property quiet title actions”); 28 U.S. C. §1346(f) (giving district courts jurisdiction over “civil actions . . . to quiet title” to property in which the United States claims an interest); §1402(d) (setting forth venue for “[a]ny civil action . . . to quiet title” to property in which the United States claims an interest). That term is universally understood to refer to suits in which a plaintiff not only challenges someone else’s claim, but also asserts his own right to disputed property. See, e.g., Black’s Law Dictionary 34 (9th ed. 2009) (defining an “action to quiet title” as “[a] proceeding —————— with a “claim.” See Block v. North Dakota ex rel. Board of Univ. and School Lands, 461 U.S. 273, 286, n. 22 (1983). And the dissent’s approach has no obvious limits. Suppose, for example, that Congress passed a statute authorizing a particular form of injunctive relief in a procurement contract suit except when the suit involved a “discretion- ary function” of a federal employee. Cf. 28 U.S. C. §2680(a). Under the dissent’s method, that exception would preclude any APA suit seeking that kind of injunctive relief if it involved a discretionary function, no matter what the nature of the claim. That implausible result demonstrates that limitations on relief cannot sensibly be un- derstood apart from the claims to which they attach. 8 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK Opinion of the Court to establish a plaintiff’s title to land by compelling the adverse claimant to establish a claim or be forever es- topped from asserting it”); Grable & Sons Metal Products, Inc. v. Darue Engineering & Mfg., 545 U.S. 308, 315 (2005) (“[T]he facts showing the plaintiffs’ title . . . are essential parts of the plaintiffs’ [quiet title] cause of ac- tion” (quoting Hopkins v. Walker, 244 U.S. 486, 490 (1917))). And the QTA’s other provisions make clear that the recurrent statutory term “quiet title action” carries its or- dinary meaning. The QTA directs that the complaint in such an action “shall set forth with particularity the na- ture of the right, title, or interest which the plaintiff claims in the real property.” 28 U.S. C. §2409a(d). If the plaintiff does not assert any such right (as Patchak does not), the statute cannot come into play.4 Further, the QTA provides an option for the United States, if it loses the suit, to pay “just compensation,” rather than return the property, to the “person determined to be entitled” to it. §2409a(b). That provision makes perfect sense in a quiet title action: If the plaintiff is found to own the property, the Government can satisfy his claim through an award of money (while still retaining the land for its operations). But the provision makes no sense in a suit like this one, —————— 4 The dissent contends that the QTA omits two other historical re- quirements for quiet title suits. See post, at 8. But many States had abandoned those requirements by the time the QTA was passed. See S. Rep. No. 92–575, p. 6 (1971) (noting “wide differences in State statutory and decisional law” on quiet title suits); Steadman, “Forgive the U. S. Its Trespasses?”: Land Title Disputes With the Sovereign— Present Remedies and Prospective Reforms, 1972 Duke L. J. 15, 48–49, and n. 152 (stating that cases had disputed whether a quiet title plaintiff needed to possess the land); Welch v. Kai, 4 Cal. App. 3d 374, 380–381, 84 Cal. Rptr. 619, 622–623 (1970) (allowing a quiet title action when the plaintiff claimed only an easement); Benson v. Fekete, 424 S.W.2d 729 (Mo. 1968) (en banc) (same). So Congress in enacting the QTA essentially chose one contemporaneous form of quiet title action. Cite as: 567 U. S. ____ (2012) 9 Opinion of the Court where Patchak does not assert a right to the property. If the United States loses the suit, an award of just compen- sation to the rightful owner (whoever and wherever he might be) could do nothing to satisfy Patchak’s claim.5 In two prior cases, we likewise described the QTA as addressing suits in which the plaintiff asserts an owner- ship interest in Government-held property. In Block v. North Dakota ex rel. Board of Univ. and School Lands, 461 U.S. 273 (1982), we considered North Dakota’s claim to land that the United States viewed as its own. We held that the State could not circumvent the QTA’s statute of limitations by invoking other causes of action, among them the APA. See id., at 277–278, 286, n. 22. The crux of our reasoning was that Congress had enacted the QTA to address exactly the kind of suit North Dakota had brought. Prior to the QTA, we explained, “citizens assert- ing title to or the right to possession of lands claimed by the United States” had no recourse; by passing the stat- ute, “Congress sought to rectify this state of affairs.” Id., at 282. Our decision reflected that legislative purpose: Congress, we held, “intended the QTA to provide the exclusive means by which adverse claimants could chal- lenge the United States’ title to real property.” Id., at 286. —————— 5 The legislative history, for those who think it useful, further shows that the QTA addresses quiet title actions, as ordinarily conceived. The Senate Report states that the QTA aimed to alleviate the “[g]rave inequity” to private parties “excluded, without benefit of a recourse to the courts, from lands they have reason to believe are rightfully theirs.” S. Rep. No. 92–575, at 1. Similarly, the House Report notes that the history of quiet title actions “goes back to the Courts of England,” and provided as examples “a plaintiff whose title to land was continually being subjected to litigation in the law courts,” and “one who feared that an outstanding deed or other interest might cause a claim to be presented in the future.” H. R. Rep. No. 92–1559, p. 6 (1972). From top to bottom, these reports show that Congress thought itself to be author- izing bread-and-butter quiet title actions, in which a plaintiff asserts a right, title, or interest of his own in disputed land. 10 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK Opinion of the Court We repeat: “adverse claimants,” meaning plaintiffs who themselves assert a claim to property antagonistic to the Federal Government’s. Our decision in United States v. Mottaz, 476 U.S. 834 (1986), is of a piece. There, we considered whether the QTA, or instead the Tucker Act or General Allotment Act, governed the plaintiff’s suit respecting certain allotments of land held by the United States. We thought the QTA the relevant statute because the plaintiff herself asserted title to the property. Our opinion quoted the plaintiff’s own description of her suit: “At no time in this proceeding did [the plaintiff] drop her claim for title. To the contrary, the claim for title is the essence and bottom line of [the plaintiff’s] case.” Id., at 842 (quoting Brief for Respondent in Mottaz, O. T. 1985, No. 546, p. 3). That fact, we held, brought the suit “within the [QTA’s] scope”: “What [the plaintiff] seeks is a declaration that she alone possesses valid title.” 476 U. S., at 842. So once again, we construed the QTA as addressing suits by adverse claimants. But Patchak is not an adverse claimant—and so the QTA (more specifically, its reservation of sovereign im- munity from actions respecting Indian trust lands) cannot bar his suit. Patchak does not contend that he owns the Bradley Property, nor does he seek any relief correspond- ing to such a claim. He wants a court to strip the United States of title to the land, but not on the ground that it is his and not so that he can possess it. Patchak’s lawsuit therefore lacks a defining feature of a QTA action. He is not trying to disguise a QTA suit as an APA action to circumvent the QTA’s “Indian lands” exception. Rather, he is not bringing a QTA suit at all. He asserts merely that the Secretary’s decision to take land into trust vio- lates a federal statute—a garden-variety APA claim. See 5 U.S. C. §§706(2)(A), (C) (“The reviewing court shall . . . hold unlawful and set aside agency action . . . not in ac- cordance with law [or] in excess of statutory jurisdiction Cite as: 567 U. S. ____ (2012) 11 Opinion of the Court [or] authority”). Because that is true—because in then- Assistant Attorney General Scalia’s words, the QTA is “not addressed to the type of grievance which [Patchak] seeks to assert,” H. R. Rep. 94–1656, at 28—the QTA’s limitation of remedies has no bearing. The APA’s general waiver of sovereign immunity instead applies. The Band and Government, along with the dissent, object to this conclusion on three basic grounds. First, they contend that the QTA speaks more broadly than we have indicated, waiving immunity from suits “to adjudi- cate a disputed title to real property in which the United States claims an interest.” 28 U.S. C. §2409a(a). That language, the argument goes, encompasses all actions contesting the Government’s legal interest in land, regard- less whether the plaintiff claims ownership himself. See Brief for Federal Petitioners 19–20; Reply Brief for Tribal Petitioner 4–6; post, at 8–9 (SOTOMAYOR, J., dissenting). The QTA (not the APA) thus becomes the relevant statute after all—as to both its waiver and its “corresponding” reservation of immunity from suits involving Indian lands. Reply Brief for Tribal Petitioner 6. But the Band and Government can reach that result only by neglecting key words in the relevant provision. That sentence, more fully quoted, reads: “The United States may be named as a party defendant in a civil action under this section to adjudicate a disputed title to real property in which the United States claims an interest.” §2409a(a) (emphasis added). And as we have already noted, “this section”—§2409a—includes a host of indica- tions that the “civil action” at issue is an ordinary quiet title suit: Just recall the section’s title (“Real property quiet title actions”), and its pleading requirements (the plaintiff “shall set forth with particularity the nature of the right, title, or interest which [he] claims”), and its permission to the Government to remedy an infraction by paying “just compensation.” Read with reference to all 12 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK Opinion of the Court these provisions (as well as to the QTA’s contemporane ously enacted jurisdictional and venue sections), the waiver clause rebuts, rather than supports, the Band’s and the Government’s argument: That clause speaks not to any suit in which a plaintiff challenges the Government’s title, but only to an action in which the plaintiff also claims an interest in the property. The Band and Government next invoke cases holding that “when a statute provides a detailed mechanism for judicial consideration of particular issues at the behest of particular persons,” the statute may “impliedly preclude[ ]” judicial review “of those issues at the behest of other persons.” Block v. Community Nutrition Institute, 467 U.S. 340, 349 (1984); see United States v. Fausto, 484 U.S. 439, 455 (1988). Here, the Band and Government contend, the QTA’s specific authorization of adverse claimants’ suits creates a negative implication: non- adverse claimants like Patchak cannot challenge Govern- ment ownership of land under any other statute. See Reply Brief for Tribal Petitoner 7–10; Reply Brief for Federal Petitioners 7–9; see also post, at 3–4. The QTA, says the Band, thus “preempts [Patchak’s] more general remedies.” Brief for Tribal Petitioner 23 (internal quota- tion marks omitted). But we think that argument faulty, and the cited cases inapposite, for the reason already given: Patchak is bring- ing a different claim, seeking different relief, from the kind the QTA addresses. See supra, at 7–10. To see the point, consider a contrasting example. Suppose the QTA authorized suit only by adverse claimants who could assert a property interest of at least a decade’s duration. Then suppose an adverse claimant failing to meet that requirement (because, say, his claim to title went back only five years) brought suit under a general statute like the APA. We would surely bar that suit, citing the cases the Government and Band rely on; in our imaginary stat- Cite as: 567 U. S. ____ (2012) 13 Opinion of the Court ute, Congress delineated the class of persons who could bring a quiet title suit, and that judgment would preclude others from doing so. But here, once again, Patchak is not bringing a quiet title action at all. He is not claiming to own the property, and he is not demanding that the court transfer the property to him. So to succeed in their argu- ment, the Government and Band must go much further than the cited cases: They must say that in authorizing one person to bring one kind of suit seeking one form of relief, Congress barred another person from bringing another kind of suit seeking another form of relief. Pre- sumably, that contention would extend only to suits in- volving similar subject matter—i.e., the Government’s ownership of property. But that commonality is not itself sufficient. We have never held, and see no cause to hold here, that some general similarity of subject matter can alone trigger a remedial statute’s preclusive effect. Last, the Band and Government argue that we should treat Patchak’s suit as we would an adverse claimant’s because they equally implicate the “Indian lands” excep- tion’s policies. According to the Government, allowing challenges to the Secretary’s trust acquisitions would “pose significant barriers to tribes[’] . . . ability to promote investment and economic development on the lands.” Brief for Federal Petitioners 24. That harm is the same whether or not a plaintiff claims to own the land himself. Indeed, the Band argues that the sole difference in this suit cuts in its direction, because non-adverse claimants like Patchak have “the most remote injuries and indirect interests in the land.” Brief for Tribal Petitioner 13; see Reply Brief for Federal Petitioners 11–12; see also post, at 2, 7, 10.6 —————— 6 In a related vein, the dissent argues that our holding will under- mine the QTA’s “Indian lands” exception by allowing adverse claimants to file APA complaints concealing their ownership interests or to recruit 14 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK Opinion of the Court That argument is not without force, but it must be addressed to Congress. In the QTA, Congress made a judgment about how far to allow quiet title suits—to a point, but no further. (The “no further” includes not only the “Indian lands” exception, but one for security interests and water rights, as well as a statute of limitations, a bar on jury trials, jurisdictional and venue constraints, and the just compensation option discussed earlier.) Perhaps Congress would—perhaps Congress should—make the identical judgment for the full range of lawsuits pertaining to the Government’s ownership of land. But that is not our call. The Band assumes that plaintiffs like Patchak have a lesser interest than those bringing quiet title ac- tions, and so should be precluded a fortiori. But all we can say is that Patchak has a different interest. Whether it is lesser, as the Band argues, because not based on property rights; whether it is greater because implicating public interests; or whether it is in the end exactly the same— that is for Congress to tell us, not for us to tell Congress. As the matter stands, Congress has not assimilated to quiet title actions all other suits challenging the Govern- ment’s ownership of property. And so when a plaintiff like Patchak brings a suit like this one, it falls within the APA’s general waiver of sovereign immunity. III We finally consider the Band’s and the Government’s alternative argument that Patchak cannot bring this ac- tion because he lacks prudential standing. This Court has long held that a person suing under the APA must satisfy not only Article III’s standing requirements, but an —————— third parties to bring suit on their behalf. See post, at 9–11. But we think that concern more imaginary than real. We have trouble conceiv- ing of a plausible APA suit that omits mention of an adverse claimant’s interest in property yet somehow leads to relief recognizing that very interest. Cite as: 567 U. S. ____ (2012) 15 Opinion of the Court additional test: The interest he asserts must be “arguably within the zone of interests to be protected or regulated by the statute” that he says was violated. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153 (1970). Here, Patchak asserts that in taking title to the Bradley Property, the Secretary exceeded her authority under §465, which authorizes the acquisition of property “for the purpose of providing land for Indians.” And he alleges that this statutory violation will cause him economic, environmental, and aesthetic harm as a nearby property owner. See supra, at 3. The Government and Band argue that the relationship between §465 and Patchak’s asserted interests is insufficient. That is so, they contend, because the statute focuses on land acquisi- tion, whereas Patchak’s interests relate to the land’s use as a casino. See Brief for Tribal Petitioner 46 (“The Secre- tary’s decision to put land into trust does not turn on any particular use of the land, gaming or otherwise[,] . . . [and] thus has no impact on [Patchak] or his asserted inter- ests”); Brief for Federal Petitioners 34 (“[L]and may be taken into trust for a host of purposes that have noth- ing at all to do with gaming”). We find this argument unpersuasive. The prudential standing test Patchak must meet “is not meant to be especially demanding.” Clarke v. Securities Industry Assn., 479 U.S. 388, 399 (1987). We apply the test in keeping with Congress’s “evident intent” when enacting the APA “to make agency action presumptively reviewable.” Ibid. We do not require any “indication of congressional purpose to benefit the would-be plaintiff.” Id., at 399–400.7 And we have always conspicuously —————— 7 For this reason, the Band’s statement that Patchak is “not an Indian or tribal official seeking land” and does not “claim an interest in ad- vancing tribal development,” Brief for Tribal Petitioner 42, is beside the point. The question is not whether §465 seeks to benefit Patchak; everyone can agree it does not. The question is instead, as the Band’s 16 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK Opinion of the Court included the word “arguably” in the test to indicate that the benefit of any doubt goes to the plaintiff. The test forecloses suit only when a plaintiff’s “interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be as- sumed that Congress intended to permit the suit.” Id., at 399. Patchak’s suit satisfies that standard, because §465 has far more to do with land use than the Government and Band acknowledge. Start with what we and others have said about §465’s context and purpose. As the leading treatise on federal Indian law notes, §465 is “the capstone” of the IRA’s land provisions. F. Cohen, Handbook of Fed- eral Indian Law §15.07[1][a], p. 1010 (2005 ed.) (hereinaf- ter Cohen). And those provisions play a key role in the IRA’s overall effort “to rehabilitate the Indian’s economic life,” Mescalero Apache Tribe v. Jones, 411 U.S. 145, 152 (1973) (internal quotation marks omitted). “Land forms the basis” of that “economic life,” providing the foundation for “tourism, manufacturing, mining, logging, . . . and gaming.” Cohen §15.01, at 965. Section 465 thus func- tions as a primary mechanism to foster Indian tribes’ economic development. As the D. C. Circuit explained in the MichGO litigation, the section “provid[es] lands suffi- cient to enable Indians to achieve self-support.” Michigan Gambling, 525 F. 3d, at 31 (internal quotation marks omitted); see Morton v. Mancari, 417 U.S. 535, 542 (1974) (noting the IRA’s economic aspect). So when the Secretary obtains land for Indians under §465, she does not do so in a vacuum. Rather, she takes title to properties with at least one eye directed toward how tribes will use those —————— and the Government’s main argument acknowledges, whether issues of land use (arguably) fall within §465’s scope—because if they do, a neighbor complaining about such use may sue to enforce the statute’s limits. See infra this page and 16–17. Cite as: 567 U. S. ____ (2012) 17 Opinion of the Court lands to support economic development. The Department’s regulations make this statutory concern with land use crystal clear. Those regulations permit the Secretary to acquire land in trust under §465 if the “land is necessary to facilitate tribal self- determination, economic development, or Indian housing.” 25 CFR §151.3(a)(3). And they require the Secretary to consider, in evaluating any acquisition, both “[t]he pur- poses for which the land will be used” and the “poten- tial conflicts of land use which may arise.” §§151.10(c), 151.10(f); see §151.11(a). For “off-reservation acquisitions” made “for business purposes”—like the Bradley Property— the regulations further provide that the tribe must “provide a plan which specifies the anticipated economic benefits associated with the proposed use.” §151.11(c). DOI’s regulations thus show that the statute’s implemen- tation centrally depends on the projected use of a given property. The Secretary’s acquisition of the Bradley Property is a case in point. The Band’s application to the Secretary highlighted its plan to use the land for gaming purposes. See App. 41 (“[T]rust status for this Property is requested in order for the Tribe to acquire property on which it plans to conduct gaming”); id., at 61–62 (“The Tribe intends to . . . renovate the existing . . . building into a gaming fa- cility . . . . to offer Class II and/or Class III gaming”). Simi- larly, DOI’s notice of intent to take the land into trust announced that the land would “be used for the purpose of construction and operation of a gaming facility,” which the Department had already determined would meet the Indian Gaming Regulatory Act’s requirements. 70 Fed. Reg. 25596; 25 U.S. C. §§2701–2721. So from start to finish, the decision whether to acquire the Bradley Prop- erty under §465 involved questions of land use. And because §465’s implementation encompasses these issues, the interests Patchak raises—at least arguably— 18 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK Opinion of the Court fall “within the zone . . . protected or regulated by the statute.” If the Government had violated a statute specifi- cally addressing how federal land can be used, no one would doubt that a neighboring landowner would have prudential standing to bring suit to enforce the statute’s limits. The difference here, as the Government and Band point out, is that §465 specifically addresses only land ac- quisition. But for the reasons already given, decisions under the statute are closely enough and often enough entwined with considerations of land use to make that difference immaterial. As in this very case, the Secretary will typically acquire land with its eventual use in mind, after assessing potential conflicts that use might create. See 25 CFR §§151.10(c), 151.10(f), 151.11(a). And so neighbors to the use (like Patchak) are reasonable— indeed, predictable—challengers of the Secretary’s deci- sions: Their interests, whether economic, environmental, or aesthetic, come within §465’s regulatory ambit. * * * The QTA’s reservation of sovereign immunity does not bar Patchak’s suit. Neither does the doctrine of prudential standing. We therefore affirm the judgment of the D. C. Circuit, and remand the case for further proceedings consistent with this opinion. It is so ordered. Cite as: 567 U. S. ____ (2012) 1 SOTOMAYOR, J., dissenting SUPREME COURT OF THE UNITED STATES _________________ Nos. 11–246 and 11–247 _________________ MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS, PETITIONER 11–246 v. DAVID PATCHAK ET AL. KEN L. SALAZAR, SECRETARY OF THE INTERIOR, ET AL., PETITIONERS 11–247 v. DAVID PATCHAK ET AL.

A provision of the Indian Reorganization Act (IRA), 25 U.S. C. authorizes the Secretary of the Interior (Secretary) to acquire property “for the purpose of provid- ing land for Indians.” Ch. 5, The Secretary here acquired land in trust for an Indian tribe seeking to open a casino. Respondent David Patchak lives near that land and challenges the Secretary’s decision in a suit brought under the Administrative Procedure Act (APA), 5 U.S. C. et seq. Patchak claims that the Secretary lacked authority under to take title to the land, and alleges economic, environmental, and aesthetic harms from the casino’s operation. We consider two questions arising from Patchak’s ac- 2 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK Opinion of the Court tion. The first is whether the United States has sovereign immunity from the suit by virtue of the Quiet Title Act (QTA), We think it does not. The second is whether Patchak has prudential standing to challenge the Secretary’s acquisition. We think he does. We therefore hold that Patchak’s suit may proceed. I The Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (Band) is an Indian tribe residing in rural Michi- gan. Although the Band has a long history, the Depart- ment of the Interior (DOI) formally recognized it only in 1999. See (1998). Two years later, the Band petitioned the Secretary to exercise her authority under by taking into trust a tract of land in Wayland Township, Michigan, known as the Bradley Property. The Band’s application explained that the Band would use the property “for gaming purposes,” with the goal of generat- ing the “revenue necessary to promote tribal economic development, self-sufficiency and a strong tribal govern- ment capable of providing its members with sorely needed social and educational programs.” App. 52, 41.1 In 2005, after a lengthy administrative review, the Secretary announced her decision to acquire the Bradley Property in trust for the Band. See In accordance with applicable regulations, the Secretary committed to wait 30 days before taking action, so that interested parties could seek judicial review. See ibid.; 25 CFR Within that window, an organiza- tion called Michigan Opposition (or MichGO) —————— 1 Under the Indian Gaming Regulatory Act, 25 U.S. C. an Indian tribe may conduct gaming operations on “Indian lands,” which include lands “held in trust by the United States for the benefit of any Indian tribe,” The application thus re- quested the Secretary to take the action necessary for the Band to open a casino. Cite as: 567 U. S. (2012) 3 Opinion of the Court filed suit alleging that the Secretary’s decision violated environmental and gaming statutes. The Secretary held off taking title to the property while that litigation pro- ceeded. Within the next few years, a District Court and the D. C. Circuit rejected MichGO’s claims. See Michigan 27–28 (CADC 2008); Michigan Shortly after the D. C. Circuit ruled against MichGO (but still before the Secretary took title), Patchak filed this suit under the APA advancing a different legal theory. He asserted that did not authorize the Secretary to acquire property for the Band because it was not a feder- ally recognized tribe when the IRA was enacted in 1934. See App. 37. To establish his standing to bring suit, Patchak contended that he lived “in close proximity to” the Bradley Property and that a casino there would “destroy the lifestyle he has enjoyed” by causing “increased traffic,” “increased crime,” “decreased property values,” “an irre- versible change in the rural character of the area,” and “other aesthetic, socioeconomic, and environmental prob- lems.” 0–31. Notably, Patchak did not assert any claim of his own to the Bradley Property. He requested only a declaration that the decision to acquire the land violated the IRA and an injunction to stop the Secretary from accepting title. See 8–39. The Band inter- vened in the suit to defend the Secretary’s decision. In January 2009, about five months after Patchak filed suit, this Court denied certiorari in MichGO’s case, 555 U.S. 1137, and the Secretary took the Bradley Property into trust. That action mooted Patchak’s request for an injunction to prevent the acquisition, and all parties agree that the suit now effectively seeks to divest the Federal Government of title to the land. See Brief for Match-E-Be- Nash-She-Wish Band of Pottawatomi Indians 17 (herein- after Tribal Petitioner); Brief for Federal Petitioners 11; 4 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK Opinion of the Court Brief for Respondent 24–25. The month after the Gov- ernment took title, this Court held in that authorizes the Secre- tary to take land into trust only for tribes that were “un- der federal jurisdiction” in 1934.2 The District Court dismissed the suit without consider- ing the merits (including the relevance of ), ruling that Patchak lacked prudential standing to challenge the Secretary’s acquisition of the Bradley Property. The court reasoned that the injuries Patchak alleged fell outside ’s “zone of interests.” The D. C. Circuit reversed that determination. See The court also rejected the Secretary’s and the Band’s alternative argument that by virtue of the QTA, sovereign immunity barred the suit. See at 707–712. The latter ruling conflicted with decisions of three Circuits holding that the United States has immunity from suits like Patchak’s. See Neighbors for Rational Development, 961– 962 (CA10 2004); Metropolitan Water Dist. of South- ern 143–144 (per curiam); Florida Dept. of Bus. Regulation v. Department of Interior, 8 F.2d 1248, 1253–1255 (CA11 1985). We granted certiorari to review both of the D. C. Circuit’s holdings, 565 U. S. and we now affirm. II We begin by considering whether the United States’ sovereign immunity bars Patchak’s suit under the APA. —————— 2 The merits of Patchak’s case are not before this Court. We therefore express no view on whether the Band was “under federal jurisdiction” in 1934, as requires. Nor do we consider how that question relates to Patchak’s allegation that the Band was not “federally recog- nized” at the time. Cf. – (BREYER, J., concurring) (discussing this issue). Cite as: 567 U. S. (2012) 5 Opinion of the Court That requires us first to look to the APA itself and then, for reasons we will describe, to the QTA. We conclude that the United States has waived its sovereign immunity from Patchak’s action. The APA generally waives the Federal Government’s immunity from a suit “seeking relief other than money damages and stating a claim that an agency or an officer or employee thereof acted or failed to act in an official capacity or under color of legal authority.” 5 U.S. C. That waiver would appear to cover Patchak’s suit, which objects to official action of the Secretary and seeks only non-monetary relief. But the APA’s waiver of immunity comes with an important carve-out: The waiver does not apply “if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought” by the plaintiff. That provision prevents plaintiffs from exploiting the APA’s waiver to evade limitations on suit contained in other statutes. The question thus be- comes whether another statute bars Patchak’s demand for relief. The Government and Band contend that the QTA does so. The QTA authorizes (and so waives the Government’s sovereign immunity from) a particular type of action, known as a quiet title suit: a suit by a plaintiff asserting a “right, title, or interest” in real property that conflicts with a “right, title, or interest” the United States claims. 28 U.S. C. The statute, however, contains an exception: The QTA’s authorization of suit “does not apply to trust or restricted Indian lands.” According to the Government and Band, that limitation on quiet title suits satisfies the APA’s carve-out and so forbids Patchak’s suit. In the Band’s words, the QTA exception retains “the United States’ full immunity from suits seeking to chal- lenge its title to or impair its legal interest in Indian trust lands.” Brief for Tribal Petitioner 18. Two hypothetical examples might help to frame consid- 6 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK Opinion of the Court eration of this argument. First, suppose Patchak had sued under the APA claiming that he owned the Bradley Prop- erty and that the Secretary therefore could not take it into trust. The QTA would bar that suit, for reasons just sug- gested. True, it fits within the APA’s general waiver, but the QTA specifically authorizes quiet title actions (which this hypothetical suit is) except when they involve Indian lands (which this hypothetical suit does). In such a cir- cumstance, a plaintiff cannot use the APA to end-run the QTA’s limitations. “[W]hen Congress has dealt in par- ticularity with a claim and [has] intended a specified remedy”—including its exceptions—to be exclusive, that is the end of the matter; the APA does not undo the judgment. (quoting H. R. Rep. No. 94–1656, p. 13 (19)). But now suppose that Patchak had sued under the APA claiming only that use of the Bradley Property was caus- ing environmental harm, and raising no objection at all to the Secretary’s title. The QTA could not bar that suit because even though involving Indian lands, it asserts a grievance altogether different from the kind the statute concerns. JUSTICE SCALIA, in a former life as Assistant Attorney General, made this precise point in a letter to Congress about the APA’s waiver of immunity (which we hasten to add, given the author, we use not as legislative history, but only for its persuasive force). When a statute “is not addressed to the type of grievance which the plain- tiff seeks to assert,” then the statute cannot prevent an APA suit. (May 10, 19, letter of Assistant Atty. Gen. A. Scalia).3 —————— 3 According to the dissent, we should look only to the kind of relief a plaintiff seeks, rather than the type of grievance he asserts, in deciding whether another statute bars an APA action. See post, at 6 (opinion of SOTOMAYOR, J.). But the dissent’s test is inconsistent with the one we adopted in Block, which asked whether Congress had particularly dealt Cite as: 567 U. S. (2012) 7 Opinion of the Court We think that principle controls Patchak’s case: The QTA’s “Indian lands” clause does not render the Govern- ment immune because the QTA addresses a kind of griev- ance different from the one Patchak advances. As we will explain, the QTA—whose full name, recall, is the Quiet Title Act—concerns (no great surprise) quiet title actions. And Patchak’s suit is not a quiet title action, because although it contests the Secretary’s title, it does not claim any competing interest in the Bradley Property. That fact makes the QTA’s “Indian lands” limitation simply inappo- site to this litigation. In reaching this conclusion, we need look no further than the QTA’s text. From its title to its jurisdictional grant to its venue provision, the Act speaks specifically and repeatedly of “quiet title” actions. See (“An Act [t]o permit suits to adjudicate certain real property quiet title actions”); 28 U.S. C. (giving district courts jurisdiction over “civil actions to quiet title” to property in which the United States claims an interest); (setting forth venue for “[a]ny civil action to quiet title” to property in which the United States claims an interest). That term is universally understood to refer to suits in which a plaintiff not only challenges someone else’s claim, but also asserts his own right to disputed property. See, e.g., Black’s Law Dictionary 34 And the dissent’s approach has no obvious limits. Suppose, for example, that Congress passed a statute authorizing a particular form of injunctive relief in a procurement contract suit except when the suit involved a “discretion- ary function” of a federal employee. Cf. 28 U.S. C. Under the dissent’s method, that exception would preclude any APA suit seeking that kind of injunctive relief if it involved a discretionary function, no matter what the nature of the claim. That implausible result demonstrates that limitations on relief cannot sensibly be un- derstood apart from the claims to which they attach. 8 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK Opinion of the Court to establish a plaintiff’s title to land by compelling the adverse claimant to establish a claim or be forever es- topped from asserting it”); Grable & Sons Metal Products, (2005) (“[T]he facts showing the plaintiffs’ title are essential parts of the plaintiffs’ [quiet title] cause of ac- tion” (quoting (1917))). And the QTA’s other provisions make clear that the recurrent statutory term “quiet title action” carries its or- dinary meaning. The QTA directs that the complaint in such an action “shall set forth with particularity the na- ture of the right, title, or interest which the plaintiff claims in the real property.” 28 U.S. C. If the plaintiff does not assert any such right (as Patchak does not), the statute cannot come into play.4 Further, the QTA provides an option for the United States, if it loses the suit, to pay “just compensation,” rather than return the property, to the “person determined to be entitled” to it. That provision makes perfect sense in a quiet title action: If the plaintiff is found to own the property, the Government can satisfy his claim through an award of money (while still retaining the land for its operations). But the provision makes no sense in a suit like this one, —————— 4 The dissent contends that the QTA omits two other historical re- quirements for quiet title suits. See post, at 8. But many States had abandoned those requirements by the time the QTA was passed. See S. Rep. No. 92–575, p. 6 (1971) (noting “wide differences in State statutory and decisional law” on quiet title suits); Steadman, “Forgive the U. S. Its Trespasses?”: Land Title Disputes With the Sovereign— Present Remedies and Prospective Reforms, 1972 Duke L. J. 15, 48–49, and n. (stating that cases had disputed whether a quiet title plaintiff needed to possess the land); 380–381, (allowing a quiet title action when the plaintiff claimed only an easement); Benson v. Fekete, 424 S.W.2d 729 (Mo. 1968) (en banc) (same). So Congress in enacting the QTA essentially chose one contemporaneous form of quiet title action. Cite as: 567 U. S. (2012) 9 Opinion of the Court where Patchak does not assert a right to the property. If the United States loses the suit, an award of just compen- sation to the rightful owner (whoever and wherever he might be) could do nothing to satisfy Patchak’s claim.5 In two prior cases, we likewise described the QTA as addressing suits in which the plaintiff asserts an owner- ship interest in Government-held property. In Block v. North Dakota ex rel. Board of Univ. and School Lands, 461 U.S. 273 (1982), we considered North Dakota’s claim to land that the United States viewed as its own. We held that the State could not circumvent the QTA’s statute of limitations by invoking other causes of action, among them the APA. See at 277–278, The crux of our reasoning was that Congress had enacted the QTA to address exactly the kind of suit North Dakota had brought. Prior to the QTA, we explained, “citizens assert- ing title to or the right to possession of lands claimed by the United States” had no recourse; by passing the stat- ute, “Congress sought to rectify this state of affairs.” 2. Our decision reflected that legislative purpose: Congress, we held, “intended the QTA to provide the exclusive means by which adverse claimants could chal- lenge the United States’ title to real property.” 6. —————— 5 The legislative history, for those who think it useful, further shows that the QTA addresses quiet title actions, as ordinarily conceived. The Senate Report states that the QTA aimed to alleviate the “[g]rave inequity” to private parties “excluded, without benefit of a recourse to the courts, from lands they have reason to believe are rightfully theirs.” S. Rep. No. 92–575, at 1. Similarly, the House Report notes that the history of quiet title actions “goes back to the Courts of England,” and provided as examples “a plaintiff whose title to land was continually being subjected to litigation in the law courts,” and “one who feared that an outstanding deed or other interest might cause a claim to be presented in the future.” H. R. Rep. No. 92–1559, p. 6 (1972). From top to bottom, these reports show that Congress thought itself to be author- izing bread-and-butter quiet title actions, in which a plaintiff asserts a right, title, or interest of his own in disputed land. 10 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK Opinion of the Court We repeat: “adverse claimants,” meaning plaintiffs who themselves assert a claim to property antagonistic to the Federal Government’s. Our decision in United 4 U.S. 834 (1986), is of a piece. There, we considered whether the QTA, or instead the Tucker Act or General Allotment Act, governed the plaintiff’s suit respecting certain allotments of land held by the United States. We thought the QTA the relevant statute because the plaintiff herself asserted title to the property. Our opinion quoted the plaintiff’s own description of her suit: “At no time in this proceeding did [the plaintiff] drop her claim for title. To the contrary, the claim for title is the essence and bottom line of [the plaintiff’s] case.” (quoting Brief for Respondent in Mottaz, O. T. 1985, No. 546, p. 3). That fact, we held, brought the suit “within the [QTA’s] scope”: “What [the plaintiff] seeks is a declaration that she alone possesses valid title.” 4 U. S., So once again, we construed the QTA as addressing suits by adverse claimants. But Patchak is not an adverse claimant—and so the QTA (more specifically, its reservation of sovereign im- munity from actions respecting Indian trust lands) cannot bar his suit. Patchak does not contend that he owns the Bradley Property, nor does he seek any relief correspond- ing to such a claim. He wants a court to strip the United States of title to the land, but not on the ground that it is his and not so that he can possess it. Patchak’s lawsuit therefore lacks a defining feature of a QTA action. He is not trying to disguise a QTA suit as an APA action to circumvent the QTA’s “Indian lands” exception. Rather, he is not bringing a QTA suit at all. He asserts merely that the Secretary’s decision to take land into trust vio- lates a federal statute—a garden-variety APA claim. See 5 U.S. C. (C) (“The reviewing court shall hold unlawful and set aside agency action not in ac- cordance with law [or] in excess of statutory jurisdiction Cite as: 567 U. S. (2012) 11 Opinion of the Court [or] authority”). Because that is true—because in then- Assistant Attorney General Scalia’s words, the QTA is “not addressed to the type of grievance which [Patchak] seeks to assert,” H. R. Rep. 94–1656, —the QTA’s limitation of remedies has no bearing. The APA’s general waiver of sovereign immunity instead applies. The Band and Government, along with the dissent, object to this conclusion on three basic grounds. First, they contend that the QTA speaks more broadly than we have indicated, waiving immunity from suits “to adjudi- cate a disputed title to real property in which the United States claims an interest.” 28 U.S. C. That language, the argument goes, encompasses all actions contesting the Government’s legal interest in land, regard- less whether the plaintiff claims ownership himself. See Brief for Federal Petitioners 19–20; Reply Brief for Tribal Petitioner 4–6; post, at 8–9 (SOTOMAYOR, J., dissenting). The QTA (not the APA) thus becomes the relevant statute after all—as to both its waiver and its “corresponding” reservation of immunity from suits involving Indian lands. Reply Brief for Tribal Petitioner 6. But the Band and Government can reach that result only by neglecting key words in the relevant provision. That sentence, more fully quoted, reads: “The United States may be named as a party defendant in a civil action under this section to adjudicate a disputed title to real property in which the United States claims an interest.” (emphasis added). And as we have already noted, “this a host of indica- tions that the “civil action” at issue is an ordinary quiet title suit: Just recall the section’s title (“Real property quiet title actions”), and its pleading requirements (the plaintiff “shall set forth with particularity the nature of the right, title, or interest which [he] claims”), and its permission to the Government to remedy an infraction by paying “just compensation.” Read with reference to all 12 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK Opinion of the Court these provisions (as well as to the QTA’s contemporane ously enacted jurisdictional and venue sections), the waiver clause rebuts, rather than supports, the Band’s and the Government’s argument: That clause speaks not to any suit in which a plaintiff challenges the Government’s title, but only to an action in which the plaintiff also claims an interest in the property. The Band and Government next invoke cases holding that “when a statute provides a detailed mechanism for judicial consideration of particular issues at the behest of particular persons,” the statute may “impliedly preclude[ ]” judicial review “of those issues at the behest of other persons.” Block v. Community Nutrition Institute, 467 U.S. 340, 349 (1984); see United States v. Fausto, 484 U.S. 439, 455 (1988). Here, the Band and Government contend, the QTA’s specific authorization of adverse claimants’ suits creates a negative implication: non- adverse claimants like Patchak cannot challenge Govern- ment ownership of land under any other statute. See Reply Brief for Tribal Petitoner 7–10; Reply Brief for Federal Petitioners 7–9; see also post, –4. The QTA, says the Band, thus “preempts [Patchak’s] more general remedies.” Brief for Tribal Petitioner 23 (internal quota- tion marks omitted). But we think that argument faulty, and the cited cases inapposite, for the reason already given: Patchak is bring- ing a different claim, seeking different relief, from the kind the QTA addresses. See at 7–10. To see the point, consider a contrasting example. Suppose the QTA authorized suit only by adverse claimants who could assert a property interest of at least a decade’s duration. Then suppose an adverse claimant failing to meet that requirement (because, say, his claim to title went back only five years) brought suit under a general statute like the APA. We would surely bar that suit, citing the cases the Government and Band rely on; in our imaginary stat- Cite as: 567 U. S. (2012) 13 Opinion of the Court ute, Congress delineated the class of persons who could bring a quiet title suit, and that judgment would preclude others from doing so. But here, once again, Patchak is not bringing a quiet title action at all. He is not claiming to own the property, and he is not demanding that the court transfer the property to him. So to succeed in their argu- ment, the Government and Band must go much further than the cited cases: They must say that in authorizing one person to bring one kind of suit seeking one form of relief, Congress barred another person from bringing another kind of suit seeking another form of relief. Pre- sumably, that contention would extend only to suits in- volving similar subject matter—i.e., the Government’s ownership of property. But that commonality is not itself sufficient. We have never held, and see no cause to hold here, that some general similarity of subject matter can alone trigger a remedial statute’s preclusive effect. Last, the Band and Government argue that we should treat Patchak’s suit as we would an adverse claimant’s because they equally implicate the “Indian lands” excep- tion’s policies. According to the Government, allowing challenges to the Secretary’s trust acquisitions would “pose significant barriers to tribes[’] ability to promote investment and economic development on the lands.” Brief for Federal Petitioners 24. That harm is the same whether or not a plaintiff claims to own the land himself. Indeed, the Band argues that the sole difference in this suit cuts in its direction, because non-adverse claimants like Patchak have “the most remote injuries and indirect interests in the land.” Brief for Tribal Petitioner 13; see Reply Brief for Federal Petitioners 11–12; see also post, at 2, 7, 10.6 —————— 6 In a related vein, the dissent argues that our holding will under- mine the QTA’s “Indian lands” exception by allowing adverse claimants to file APA complaints concealing their ownership interests or to recruit 14 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK Opinion of the Court That argument is not without force, but it must be addressed to Congress. In the QTA, Congress made a judgment about how far to allow quiet title suits—to a point, but no further. (The “no further” includes not only the “Indian lands” exception, but one for security interests and water rights, as well as a statute of limitations, a bar on jury trials, jurisdictional and venue constraints, and the just compensation option discussed earlier.) Perhaps Congress would—perhaps Congress should—make the identical judgment for the full range of lawsuits pertaining to the Government’s ownership of land. But that is not our call. The Band assumes that plaintiffs like Patchak have a lesser interest than those bringing quiet title ac- tions, and so should be precluded a fortiori. But all we can say is that Patchak has a different interest. Whether it is lesser, as the Band argues, because not based on property rights; whether it is greater because implicating public interests; or whether it is in the end exactly the same— that is for Congress to tell us, not for us to tell Congress. As the matter stands, Congress has not assimilated to quiet title actions all other suits challenging the Govern- ment’s ownership of property. And so when a plaintiff like Patchak brings a suit like this one, it falls within the APA’s general waiver of sovereign immunity. III We finally consider the Band’s and the Government’s alternative argument that Patchak cannot bring this ac- tion because he lacks prudential standing. This Court has long held that a person suing under the APA must satisfy not only Article III’s standing requirements, but an —————— third parties to bring suit on their behalf. See post, at 9–11. But we think that concern more imaginary than real. We have trouble conceiv- ing of a plausible APA suit that omits mention of an adverse claimant’s interest in property yet somehow leads to relief recognizing that very interest. Cite as: 567 U. S. (2012) 15 Opinion of the Court additional test: The interest he asserts must be “arguably within the zone of interests to be protected or regulated by the statute” that he says was violated. Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 153 Here, Patchak asserts that in taking title to the Bradley Property, the Secretary exceeded her authority under which authorizes the acquisition of property “for the purpose of providing land for Indians.” And he alleges that this statutory violation will cause him economic, environmental, and aesthetic harm as a nearby property owner. See The Government and Band argue that the relationship between and Patchak’s asserted interests is insufficient. That is so, they contend, because the statute focuses on land acquisi- tion, whereas Patchak’s interests relate to the land’s use as a casino. See Brief for Tribal Petitioner 46 (“The Secre- tary’s decision to put land into trust does not turn on any particular use of the land, gaming or otherwise[,] [and] thus has no impact on [Patchak] or his asserted inter- ests”); Brief for Federal Petitioners 34 (“[L]and may be taken into trust for a host of purposes that have noth- ing at all to do with gaming”). We find this argument unpersuasive. The prudential standing test Patchak must meet “is not meant to be especially demanding.” We apply the test in keeping with Congress’s “evident intent” when enacting the APA “to make agency action presumptively reviewable.” We do not require any “indication of congressional purpose to benefit the would-be plaintiff.” 99–400.7 And we have always conspicuously —————— 7 For this reason, the Band’s statement that Patchak is “not an Indian or tribal official seeking land” and does not “claim an interest in ad- vancing tribal development,” Brief for Tribal Petitioner 42, is beside the point. The question is not whether seeks to benefit Patchak; everyone can agree it does not. The question is instead, as the Band’s 16 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK Opinion of the Court included the word “arguably” in the test to indicate that the benefit of any doubt goes to the plaintiff. The test forecloses suit only when a plaintiff’s “interests are so marginally related to or inconsistent with the purposes implicit in the statute that it cannot reasonably be as- sumed that Congress intended to permit the suit.” 99. Patchak’s suit satisfies that standard, because has far more to do with land use than the Government and Band acknowledge. Start with what we and others have said about ’s context and purpose. As the leading treatise on federal Indian law notes, is “the capstone” of the IRA’s land provisions. F. Cohen, Handbook of Fed- eral Indian Law p. 1010 (2005 ed.) (hereinaf- ter Cohen). And those provisions play a key role in the IRA’s overall effort “to rehabilitate the Indian’s economic life,” Mescalero Apache (1973) (internal quotation marks omitted). “Land forms the basis” of that “economic life,” providing the foundation for “tourism, manufacturing, mining, logging, and gaming.” Cohen at 965. Section 465 thus func- tions as a primary mechanism to foster Indian tribes’ economic development. As the D. C. Circuit explained in the MichGO litigation, the section “provid[es] lands suffi- cient to enable Indians to achieve self-support.” Michigan 525 F. 3d, 1 (internal quotation marks omitted); see (noting the IRA’s economic aspect). So when the Secretary obtains land for Indians under she does not do so in a vacuum. Rather, she takes title to properties with at least one eye directed toward how tribes will use those —————— and the Government’s main argument acknowledges, whether issues of land use (arguably) fall within ’s scope—because if they do, a neighbor complaining about such use may sue to enforce the statute’s limits. See infra this page and 16–17. Cite as: 567 U. S. (2012) 17 Opinion of the Court lands to support economic development. The Department’s regulations make this statutory concern with land use crystal clear. Those regulations permit the Secretary to acquire land in trust under if the “land is necessary to facilitate tribal self- determination, economic development, or Indian housing.” (a)(3). And they require the Secretary to consider, in evaluating any acquisition, both “[t]he pur- poses for which the land will be used” and the “poten- tial conflicts of land use which may arise.” 151.10(f); see For “off-reservation acquisitions” made “for business purposes”—like the Bradley Property— the regulations further provide that the tribe must “provide a plan which specifies the anticipated economic benefits associated with the proposed use.” DOI’s regulations thus show that the statute’s implemen- tation centrally depends on the projected use of a given property. The Secretary’s acquisition of the Bradley Property is a case in point. The Band’s application to the Secretary highlighted its plan to use the land for gaming purposes. See App. 41 (“[T]rust status for this Property is requested in order for the Tribe to acquire property on which it plans to conduct gaming”); at 61–62 (“The Tribe intends to renovate the existing building into a gaming fa- cility to offer Class II and/or Class III gaming”). Simi- larly, DOI’s notice of intent to take the land into trust announced that the land would “be used for the purpose of construction and operation of a gaming facility,” which the Department had already determined would meet the Indian Gaming Regulatory Act’s requirements. 70 Fed. Reg. 25596; 25 U.S. C. So from start to finish, the decision whether to acquire the Bradley Prop- erty under involved questions of land use. And because ’s implementation encompasses these issues, the interests Patchak raises—at least arguably— 18 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK Opinion of the Court fall “within the zone protected or regulated by the statute.” If the Government had violated a statute specifi- cally addressing how federal land can be used, no one would doubt that a neighboring landowner would have prudential standing to bring suit to enforce the statute’s limits. The difference here, as the Government and Band point out, is that specifically addresses only land ac- quisition. But for the reasons already given, decisions under the statute are closely enough and often enough entwined with considerations of land use to make that difference immaterial. As in this very case, the Secretary will typically acquire land with its eventual use in mind, after assessing potential conflicts that use might create. See 25 CFR 151.10(f), 151.11(a). And so neighbors to the use (like Patchak) are reasonable— indeed, predictable—challengers of the Secretary’s deci- sions: Their interests, whether economic, environmental, or aesthetic, come within ’s regulatory ambit. * * * The QTA’s reservation of sovereign immunity does not bar Patchak’s suit. Neither does the doctrine of prudential standing. We therefore affirm the judgment of the D. C. Circuit, and remand the case for further proceedings consistent with this opinion. It is so ordered. Cite as: 567 U. S. (2012) 1 SOTOMAYOR, J., dissenting SUPREME COURT OF THE UNITED STATES Nos. 11–246 and 11–247 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS, PETITIONER 11–246 v. DAVID PATCHAK ET AL. KEN L. SALAZAR, SECRETARY OF THE INTERIOR, ET AL., PETITIONERS 11–247 v. DAVID PATCHAK ET AL.

Justice Sotomayor

dissenting

Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians v. Patchak

2012-06-18

https://www.courtlistener.com/opinion/802400/match-e-be-nash-she-wish-band-of-pottawatomi-indians-v-patchak/

https://www.courtlistener.com/api/rest/v3/clusters/802400/

2011-065

In enacting the Quiet Title Act (QTA), Congress waived the Government’s sovereign immunity in cases seeking “to adjudicate a disputed title to real property in which the United States claims an interest.” 28 U.S. C. §2409a(a). In so doing, Congress was careful to retain the Govern- ment’s sovereign immunity with respect to particular claimants, particular categories of land, and particular remedies. Congress and the Executive Branch considered these “carefully crafted provisions” essential to the im- munity waiver and “necessary for the protection of the national public interest.” Block v. North Dakota ex rel. Board of Univ. and School Lands, 461 U.S. 273, 284–285 (1983). The Court’s opinion sanctions an end-run around these vital limitations on the Government’s waiver of sovereign immunity. After today, any person may sue under the 2 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK SOTOMAYOR, J., dissenting Administrative Procedure Act (APA) to divest the Federal Government of title to and possession of land held in trust for Indian tribes—relief expressly forbidden by the QTA— so long as the complaint does not assert a personal inter- est in the land. That outcome cannot be squared with the APA’s express admonition that it confers no “authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.” 5 U.S. C. §702. The Court’s holding not only creates perverse incentives for private litigants, but also exposes the Government’s ownership of land to costly and pro- longed challenges. Because I believe those results to be inconsistent with the QTA and the APA, I respectfully dissent. I A Congress enacted the QTA to provide a comprehensive solution to the problem of real-property disputes between private parties and the United States. The QTA strikes a careful balance between private parties’ desire to adjudi- cate such disputes, and the Government’s desire to impose “ ‘appropriate safeguards’ ” on any waiver of sovereign immunity to ensure “ ‘the protection of the public inter- est.’ ” Block, 461 U. S., at 282–283; see also S. Rep. No. 92–575, p. 6 (1971). Section 2409a(a) provides expansively that “[t]he United States may be named as a party defendant in a civil action under this section to adjudicate a disputed title to real property in which the United States claims an interest.” That language mirrors the title proposed by the Executive Branch for the legislation that Congress largely adopted: “A Bill To permit suits to adjudicate disputed titles to lands in which the United States claims an interest.” Id., at 7. The remainder of the Act, however, imposes important Cite as: 567 U. S. ____ (2012) 3 SOTOMAYOR, J., dissenting conditions upon the Government’s waiver of sovereign im- munity. First, the right to sue “does not apply to trust or restricted Indian lands.” §2409a(a). The Indian lands exception reflects the view that “a waiver of immunity in this area would not be consistent with specific commit- ments [the Government] ha[s] made to the Indians through treaties and other agreements.” Block, 461 U. S., at 283 (internal quotation marks omitted). By exempting Indian lands, Congress ensured that the Government’s “solemn obligations” to tribes would not be “abridg[ed] . . . without the consent of the Indians.” S. Rep. No. 92–575, at 4. Second, the Act preserves the United States’ power to retain possession or control of any disputed property, even if a court determines that the Government’s property claim is invalid. To that end, §2409a(b) “allow[s] the United States the option of paying money damages in- stead of surrendering the property if it lost a case on the merits.” Block, 461 U. S., at 283. This provision was considered essential to addressing the Government’s “main objection in the past to waiving sovereign immu- nity” where federal land was concerned: that an adverse judgment “would make possible decrees ousting the United States from possession and thus interfer[e] with opera- tions of the Government.” S. Rep. No. 92–575, at 5–6. Section 2409a(b) “eliminate[d] cause for such apprehen- sion,” by ensuring that—even under the QTA—the United States could not be stripped of its possession or control of property without its consent. Id., at 6. Finally, the Act limits the class of individuals permitted to sue the Government to those claiming a “right, title, or interest” in disputed property. §2409a(d). As we have explained, Congress’ decision to restrict the class entitled to relief indicates that Congress precluded relief for the remainder. See, e.g., Block v. Community Nutrition Insti- tute, 467 U.S. 340, 349 (1984) (“[W]hen a statute provides 4 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK SOTOMAYOR, J., dissenting a detailed mechanism for judicial consideration of particu- lar issues at the behest of particular persons, judicial review of those issues at the behest of other persons may be found to be impliedly precluded”). That inference is especially strong here, because the QTA was “enacted against the backdrop of sovereign immunity.” S. Rep. No. 94–996, p. 27 (1976). Section 2409a(d) thus indicates that Congress concluded that those without any “right, title, or interest” in a given property did not have an inter- est sufficient to warrant abrogation of the Government’s sovereign immunity. Congress considered these conditions indispensible to its immunity waiver.1 “[W]hen Congress attaches conditions to legislation waiving the sovereign immunity of the United States, those conditions must be strictly observed, and exceptions thereto are not to be lightly implied.” Block, 461 U. S., at 287. Congress and the Executive Branch intended the scheme to be the exclusive procedure for resolving property title disputes involving the United States. See id., at 285 (describing Act as a “careful and thorough remedial scheme”); S. Rep. No. 92–575, at 4 (§2409a “provides a complete, thoughtful approach to the problem of disputed titles to federally claimed land” (em- phasis added)). For that reason, we held that Congress did not intend to create a “new supplemental remedy” when it enacted the APA’s general waiver of sovereign immunity. Block, 461 —————— 1 As we explained in Block v. North Dakota ex rel. Board of Univ. and School Lands, 461 U.S. 273, 282–283 (1983), Congress’ initial proposal lacked such provisions. The Executive Branch, however, strongly opposed the original bill, explaining that it was “too broad and sweep- ing in scope and lacking adequate safeguards to protect the public interest.” Dispute of Titles on Public Lands: Hearings on S. 216 et al. before the Subcommittee on Public Lands of the Senate Committee on Interior and Insular Affairs, 92d Cong., 1st Sess., 21 (1971). Congress ultimately agreed, largely adopting the Executive’s substitute bill. See Block, 461 U. S., at 283–284. Cite as: 567 U. S. ____ (2012) 5 SOTOMAYOR, J., dissenting U. S., at 286, n. 22. “ ‘It would require the suspension of disbelief,’ ” we reasoned, “ ‘to ascribe to Congress the de- sign to allow its careful and thorough remedial scheme to be circumvented by artful pleading.’ ” Id., at 285 (quoting Brown v. GSA, 425 U.S. 820, 833 (1976)). If a plaintiff could oust the Government of title to land by means of an APA action, “all of the carefully crafted provisions of the QTA deemed necessary for the protection of the national public interest could be averted,” and the “Indian lands exception to the QTA would be rendered nugatory.” Block, 461 U. S., at 284–285. We therefore had little difficulty concluding that Congress did not intend to render the QTA’s limitations obsolete by affording any plaintiff the right to dispute the Government’s title to any lands by way of an APA action—and to empower any such plaintiff to “disposses[s] [the United States] of the disputed prop- erty without being afforded the option of paying damages.” Id., at 285. It is undisputed that Patchak does not meet the condi- tions to sue under the QTA. He seeks to challenge the Government’s title to Indian trust land (strike one); he seeks to force the Government to relinquish possession and title outright, leaving it no alternative to pay compen- sation (strike two); and he does not claim any personal right, title, or interest in the property (strike three). Thus, by its express terms, the QTA forbids the relief Patchak seeks. Compare ante, at 3 (“[A]ll parties agree that the suit now effectively seeks to divest the Federal Govern- ment of title to the [Indian trust] land”), with United States v. Mottaz, 476 U.S. 834, 842 (1986) (Section 2409a(a)’s Indian lands exclusion “operates solely to retain the United States’ immunity from suit by third parties challenging the United States’ title to land held in trust for Indians”). Consequently, Patchak may not avoid the QTA’s constraints by suing under the APA, a statute enacted only four years later. See 5 U.S. C. §702 (render- 6 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK SOTOMAYOR, J., dissenting ing the APA’s waiver of sovereign immunity inapplicable “if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought”). B The majority nonetheless permits Patchak to circum- vent the QTA’s limitations by filing an action under the APA. It primarily argues that the careful limitations Con- gress imposed upon the QTA’s waiver of sovereign im- munity are “simply inapposite” to actions in which the plaintiff advances a different “grievance” to that underly- ing a QTA suit, i.e., cases in which a plaintiff seeks to “strip the United States of title to the land . . . not on the ground that it is his,” but rather because “the Secretary’s decision to take land into trust violates a federal statute.” Ante, at 7, 10. This analysis is unmoored from the text of the APA. Section 702 focuses not on a plaintiff ’s motivation for suit, nor the arguments on which he grounds his case, but only on whether another statute expressly or impliedly forbids the relief he seeks. The relief Patchak admittedly seeks—to oust the Government of title to Indian trust land—is identical to that forbidden by the QTA. Con- versely, the Court’s hypothetical suit, alleging that the Bradley Property was causing environmental harm, would not be barred by the QTA. See ante, at 6. That is not because such an action asserts a different “grievance,” but because it seeks different relief—abatement of a nuisance rather than the extinguishment of title.2 —————— 2 The majority claims, ante, at 7, n. 3, that this test has “no obvious limits,” but it merely applies the text of §702 (which speaks of “relief,” not “grievances”). In any event, the majority’s hypothetical, ibid., compares apples to oranges. I do not contend that the APA bars all injunctive relief involving Indian lands, simply other suits—like this one—that seek “to adjudicate a disputed title to real property in which the United States claims an interest.” 28 U.S. C. §2409a(a). That Cite as: 567 U. S. ____ (2012) 7 SOTOMAYOR, J., dissenting In any event, the “grievance” Patchak asserts is no different from that asserted in Block—a case in which we unanimously rejected a plaintiff ’s attempt to avoid the QTA’s restrictions by way of an APA action or the similar device of an officer’s suit.3 That action, like this one, was styled as a suit claiming that the Government’s actions respecting land were “ ‘ “not within [its] statutory pow- ers.” ’ ” 461 U. S., at 281. Cf. ante, at 10 (“[Patchak] as- serts merely that the Secretary’s decision to take land into trust violates a federal statute”). The relief requested was also identical to that sought here: injunctive relief direct- ing the United States to “ ‘cease and desist from . . . exer- cising privileges of ownership’ ” over the land in question. 461 U. S., at 278; see also App. 38. The only difference that the majority can point to be- tween Block and this case is that Patchak asserts a weaker interest in the disputed property. But that is no reason to imagine that Congress intended a different outcome. As the majority itself acknowledges, the harm to the United States and tribes when a plaintiff sues to extinguish the Government’s title to Indian trust land is identical “whether or not a plaintiff claims to own the land himself.” Ante, at 12. Yet, if the majority is correct, Congress in- tended the APA’s waiver of immunity to apply to those hypothetical plaintiffs differently. Congress, it suggests, intended to permit anyone to circumvent the QTA’s careful —————— result is entirely consistent with Block—which stated that the APA “specifically confers no ‘authority to grant relief if any other statute . . . expressly or impliedly forbids the relief which is sought.’ ” 461 U. S, at 286, n. 22 (quoting 5 U.S. C. §702). 3 An officer’s suit is an action directly against a federal officer, but was otherwise identical to the kind of APA action at issue here. Com- pare Block, 461 U. S., at 281 (seeking relief because agency official’s actions were “ ‘ “not within [his] statutory powers” ’ ”), with 5 U.S. C. §706(2)(C) (“The reviewing court shall . . . hold unlawful and set aside agency action . . . found to be . . . in excess of statutory jurisdiction, authority, or limitations”). 8 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK SOTOMAYOR, J., dissenting limitations and sue to force the Government to relinquish Indian trust lands—anyone, that is, except those with the strongest entitlement to bring such actions: those claiming a personal “right, title, or interest” in the land in question. The majority’s conclusion hinges, therefore, on the doubt- ful premise that Congress intended to waive the Govern- ment’s sovereign immunity wholesale for those like Patchak, who assert an “aesthetic” interest in land, ante, at 1, while retaining the Government’s sovereign immu- nity against those who assert a constitutional interest in land—the deprivation of property without due process of law. This is highly implausible. Unsurprisingly, the majority does not even attempt to explain why Congress would have intended this counterintuitive result. It is no answer to say that the QTA reaches no further than an “ordinary quiet title suit.” Ante, at 11. The action permitted by §2409a is not an ordinary quiet title suit. At common law, equity courts “permit[ted] a bill to quiet title to be filed only by a party in possession [of land] against a defendant, who ha[d] been ineffectually seeking to estab- lish a legal title by repeated actions of ejectment.” Wehr- man v. Conklin, 155 U.S. 314, 321–322 (1894) (emphasis added). Section 2409a is broader, requiring neither pre- requisite. Moreover, as the majority tells us, see ante, at 7, an act to quiet title is “universally understood” as a proceeding “to establish a plaintiff ’s title to land.” Black’s Law Dictionary 34 (9th ed. 2009) (emphasis added). But §2409a authorizes civil actions in cases in which neither the Government, nor the plaintiff, claims title to the land at issue. See §2409a(d) (“The complaint shall set forth . . . the right, title, or interest which the plaintiff claims” (em- phasis added)).4 A plaintiff may file suit under §2409a, for —————— 4 The majority notes that some States permit a broader class of claims under the rubric of “quiet title,” and points to the “ ‘wide differ- ences in State statutory and decisional law’ on quiet title suits” at the Cite as: 567 U. S. ____ (2012) 9 SOTOMAYOR, J., dissenting instance, when he claims only an easement in land, the right to explore an area for minerals, or some other lesser right or interest. See S. Rep. No. 92–575, at 5. Notwith- standing its colloquial title, therefore, the QTA plainly allows suit in circumstances well beyond “bread-and- butter quiet title actions,” ante, at 3, n. 3.5 The majority attempts to bolster its reading by empha- sizing an unexpected source within §2409a: the clause specifying that the United States may be sued “ ‘in a civil action under this section.’ ” Ante, at 11. The majority understands this clause to narrow the QTA’s scope (and its limitations on the Government’s immunity waiver) to quiet title claims only. But “this section” speaks broadly to civil actions “to adjudicate a disputed title to real prop- erty in which the United States claims an interest.” §2409a. Moreover, this clause is read most straightfor- wardly to serve a far more pedestrian purpose: simply to state that a claimant can file “a civil action under this section”—§2409a—to adjudicate a disputed title in which the United States claims an interest. Regardless of how one reads the clause, however, it does not alter the APA’s clear command that suits seeking relief forbidden by other statutes are not authorized by the APA. And the QTA forbids the relief sought here: injunctive relief forcing the Government to relinquish title to Indian lands. Even if the majority were correct that the QTA itself reached only as far as ordinary quiet title actions, that —————— time of the Act. Ante, at 8, n. 4. But that substantial variation only illustrates the artificiality of the majority’s claim that the Act only “addresses quiet title actions, as ordinarily conceived.” Ante, at 9, n. 5. 5 I recognize, of course, that the QTA is titled “[a]n Act to permit suits to adjudicate certain real property quiet title actions.” 86 Stat. 1176. But “the title of a statute . . . cannot limit the plain meaning of [its] text.” Trainmen v. Baltimore & Ohio R. Co., 331 U.S. 519, 528–529 (1947). As explained above, the substance of Congress’ enactment plainly extends more broadly than quiet title actions, mirroring the scope of the title proposed by the Government. See supra, at 2. 10 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK SOTOMAYOR, J., dissenting would establish only that the QTA does not expressly forbid the relief Patchak seeks. The APA, however, does not waive the Government’s sovereign immunity where any other statute “expressly or impliedly forbids the relief which is sought.” 5 U.S. C. §702 (emphasis added). The text and history of the QTA, as well as this Court’s prece- dent, make clear that the United States intended to retain its sovereign immunity from suits to dispossess the Gov- ernment of Indian trust land. Patchak’s suit to oust the Government of such land is therefore, at minimum, im- pliedly forbidden.6 II Three consequences illustrate the difficulties today’s holding will present for courts and the Government. First, it will render the QTA’s limitations easily circumvented. Although those with property claims will remain formally prohibited from bringing APA suits because of Block, savvy plaintiffs and their lawyers can recruit a family member or neighbor to bring suit asserting only an “aes- thetic” interest in the land but seeking an identical prac- tical objective—to divest the Government of title and possession. §§2409a(a), (b). Nothing will prevent them from obtaining relief that the QTA was designed to foreclose. Second, the majority’s holding will frustrate the Gov- ernment’s ability to resolve challenges to its fee-to-trust decisions expeditiously. When a plaintiff like Patchak asserts an “aesthetic” or “environmental” concern with a planned use of Indian trust land, he may bring a distinct suit under statutes like the National Environmental Policy Act of 1969 and the Indian Gaming Regulatory Act. Those challenges generally may be brought within the APA’s ordinary 6-year statute of limitations. Suits to —————— 6 Because I conclude that sovereign immunity bars Patchak’s suit, I would not reach the question of whether he has standing. Cite as: 567 U. S. ____ (2012) 11 SOTOMAYOR, J., dissenting contest the Government’s decision to take title to land in trust for Indian tribes, however, have been governed by a different rule. Until today, parties seeking to challenge such decisions had only a 30-day window to seek judi- cial review. 25 CFR §151.12 (2011); 61 Fed. Reg. 18,082–18,083 (1996). That deadline promoted finality and security—necessary preconditions for the investment and “economic development” that are central goals of the Indian Reorganization Act. Ante, at 16.7 Today’s result will promote the opposite, retarding tribes’ ability to de- velop land until the APA’s 6-year statute of limitations has lapsed.8 Finally, the majority’s rule creates substantial uncer- tainty regarding who exactly is barred from bringing APA claims. The majority leaves unclear, for instance, whether its rule bars from suit only those who “claim any compet- ing interest” in the disputed land in their complaint, ante, at 7, or those who could claim a competing interest, but plead only that the Government’s title claim violates a federal statute. If the former, the majority’s holding would allow Patchak’s challenge to go forward even if he had some personal interest in the Bradley Property, so long as his complaint did not assert it. That result is difficult to square with Block and Mottaz. If the latter, matters are even more peculiar. Because a shrewd plain- tiff will avoid referencing her own property claim in her —————— 7 Trust status, for instance, is a prerequisite to making lands eligible for various federal incentives and tax credits closely tied to economic development. See, e.g., App. 56. Delayed suits will also inhibit tribes from investing in uses other than gaming that might be less objection- able—like farming or office use. 8 Despite notice of the Government’s intent through an organization with which he was affiliated, Patchak did not challenge the Govern- ment’s fee-to-trust decision even though the organization did. See Michigan Gambling Opposition v. Kempthorne, 525 F.3d 23 (CADC 2008). Instead, Patchak waited to sue until three years after the Secretary’s intent to acquire the property was published. App. 35, 39. 12 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK SOTOMAYOR, J., dissenting complaint, the Government may assert sovereign immu- nity only if its detective efforts uncover the plaintiff ’s unstated property claim. Not only does that impose a substantial burden on the Government, but it creates per- verse incentives for private litigants. What if a plain- tiff has a weak claim, or a claim that she does not know about? Did Congress really intend for the availability of APA relief to turn on whether a plaintiff does a better job of overlooking or suppressing her own property interest than the Government does of sleuthing it out? As these observations illustrate, the majority’s rule will impose a substantial burden on the Government and leave an array of uncertainties. Moreover, it will open to suit lands that Congress and the Executive Branch thought the “national public interest” demanded should remain immune from challenge. Congress did not intend either result. * * * For the foregoing reasons, I would hold that the QTA bars the relief Patchak seeks. I respectfully dissent

In enacting the Quiet Title Act (QTA), Congress waived the Government’s sovereign immunity in cases seeking “to adjudicate a disputed title to real property in which the United States claims an interest.” 28 U.S. C. In so doing, Congress was careful to retain the Govern- ment’s sovereign immunity with respect to particular claimants, particular categories of land, and particular remedies. Congress and the Executive Branch considered these “carefully crafted provisions” essential to the im- munity waiver and “necessary for the protection of the national public interest.” 284–285 The Court’s opinion sanctions an end-run around these vital limitations on the Government’s waiver of sovereign immunity. After today, any person may sue under the 2 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK SOTOMAYOR, J., dissenting Administrative Procedure Act (APA) to divest the Federal Government of title to and possession of land held in trust for Indian tribes—relief expressly forbidden by the QTA— so long as the complaint does not assert a personal inter- est in the land. That outcome cannot be squared with the APA’s express admonition that it confers no “authority to grant relief if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought.” 5 U.S. C. The Court’s holding not only creates perverse incentives for private litigants, but also exposes the Government’s ownership of land to costly and pro- longed challenges. Because I believe those results to be inconsistent with the QTA and the APA, I respectfully dissent. I A Congress enacted the QTA to provide a comprehensive solution to the problem of real-property disputes between private parties and the United States. The QTA strikes a careful balance between private parties’ desire to adjudi- cate such disputes, and the Government’s desire to impose “ ‘appropriate safeguards’ ” on any waiver of sovereign immunity to ensure “ ‘the protection of the public inter- est.’ ” –283; see also S. Rep. No. 92–575, p. 6 (1971). Section 2409a(a) provides expansively that “[t]he United States may be named as a party defendant in a civil action under this section to adjudicate a disputed title to real property in which the United States claims an interest.” That language mirrors the title proposed by the Executive Branch for the legislation that Congress largely adopted: “A Bill To permit suits to adjudicate disputed titles to lands in which the United States claims an interest.” at 7. The remainder of the Act, however, imposes important Cite as: 567 U. S. (2012) 3 SOTOMAYOR, J., dissenting conditions upon the Government’s waiver of sovereign im- munity. First, the right to sue “does not apply to trust or restricted Indian lands.” The Indian lands exception reflects the view that “a waiver of immunity in this area would not be consistent with specific commit- ments [the Government] ha[s] made to the Indians through treaties and other agreements.” 461 U. S., 83 (internal quotation marks omitted). By exempting Indian lands, Congress ensured that the Government’s “solemn obligations” to tribes would not be “abridg[ed] without the consent of the Indians.” S. Rep. No. 92–575, at 4. Second, the Act preserves the United States’ power to retain possession or control of any disputed property, even if a court determines that the Government’s property claim is invalid. To that end, “allow[s] the United States the option of paying money damages in- stead of surrendering the property if it lost a case on the merits.” This provision was considered essential to addressing the Government’s “main objection in the past to waiving sovereign immu- nity” where federal land was concerned: that an adverse judgment “would make possible decrees ousting the United States from possession and thus interfer[e] with opera- tions of the Government.” S. Rep. No. 92–575, at 5–6. Section 2409a(b) “eliminate[d] cause for such apprehen- sion,” by ensuring that—even under the QTA—the United States could not be stripped of its possession or control of property without its consent. Finally, the Act limits the class of individuals permitted to sue the Government to those claiming a “right, title, or interest” in disputed property. As we have explained, Congress’ decision to restrict the class entitled to relief indicates that Congress precluded relief for the remainder. See, e.g., v. Community Nutrition Insti- tute, (“[W]hen a statute provides 4 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK SOTOMAYOR, J., dissenting a detailed mechanism for judicial consideration of particu- lar issues at the behest of particular persons, judicial review of those issues at the behest of other persons may be found to be impliedly precluded”). That inference is especially strong here, because the QTA was “enacted against the backdrop of sovereign immunity.” S. Rep. No. 94–996, p. 27 Section 2409a(d) thus indicates that Congress concluded that those without any “right, title, or interest” in a given property did not have an inter- est sufficient to warrant abrogation of the Government’s sovereign immunity. Congress considered these conditions indispensible to its immunity waiver.1 “[W]hen Congress attaches conditions to legislation waiving the sovereign immunity of the United States, those conditions must be strictly observed, and exceptions thereto are not to be lightly implied.” Congress and the Executive Branch intended the scheme to be the exclusive procedure for resolving property title disputes involving the United States. See (describing Act as a “careful and thorough remedial scheme”); S. Rep. No. 92–575, at 4 “provides a complete, thoughtful approach to the problem of disputed titles to federally claimed land” (em- phasis added)). For that reason, we held that Congress did not intend to create a “new supplemental remedy” when it enacted the APA’s general waiver of sovereign immunity. 461 —————— 1 As we explained in v. North Dakota ex rel. Board of Univ. and School Lands, Congress’ initial proposal lacked such provisions. The Executive Branch, however, strongly opposed the original bill, explaining that it was “too broad and sweep- ing in scope and lacking adequate safeguards to protect the public interest.” Dispute of Titles on Public Lands: Hearings on S. 216 et al. before the Subcommittee on Public Lands of the Senate Committee on Interior and Insular Affairs, 92d Cong., 1st Sess., 21 (1971). Congress ultimately agreed, largely adopting the Executive’s substitute bill. See –284. Cite as: 567 U. S. (2012) 5 SOTOMAYOR, J., dissenting U. S., 86, n. 22. “ ‘It would require the suspension of disbelief,’ ” we reasoned, “ ‘to ascribe to Congress the de- sign to allow its careful and thorough remedial scheme to be circumvented by artful pleading.’ ” ). If a plaintiff could oust the Government of title to land by means of an APA action, “all of the carefully crafted provisions of the QTA deemed necessary for the protection of the national public interest could be averted,” and the “Indian lands exception to the QTA would be rendered nugatory.” –285. We therefore had little difficulty concluding that Congress did not intend to render the QTA’s limitations obsolete by affording any plaintiff the right to dispute the Government’s title to any lands by way of an APA action—and to empower any such plaintiff to “disposses[s] [the United States] of the disputed prop- erty without being afforded the option of paying damages.” It is undisputed that Patchak does not meet the condi- tions to sue under the QTA. He seeks to challenge the Government’s title to Indian trust land (strike one); he seeks to force the Government to relinquish possession and title outright, leaving it no alternative to pay compen- sation (strike two); and he does not claim any personal right, title, or interest in the property (strike three). Thus, by its express terms, the QTA forbids the relief Patchak seeks. Compare ante, at 3 (“[A]ll parties agree that the suit now effectively seeks to divest the Federal Govern- ment of title to the [Indian trust] land”), with United (Section 2409a(a)’s Indian lands exclusion “operates solely to retain the United States’ immunity from suit by third parties challenging the United States’ title to land held in trust for Indians”). Consequently, Patchak may not avoid the QTA’s constraints by suing under the APA, a statute enacted only four years later. See 5 U.S. C. (render- 6 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK SOTOMAYOR, J., dissenting ing the APA’s waiver of sovereign immunity inapplicable “if any other statute that grants consent to suit expressly or impliedly forbids the relief which is sought”). B The majority nonetheless permits Patchak to circum- vent the QTA’s limitations by filing an action under the APA. It primarily argues that the careful limitations Con- gress imposed upon the QTA’s waiver of sovereign im- munity are “simply inapposite” to actions in which the plaintiff advances a different “grievance” to that underly- ing a QTA suit, i.e., cases in which a plaintiff seeks to “strip the United States of title to the land not on the ground that it is his,” but rather because “the Secretary’s decision to take land into trust violates a federal statute.” Ante, at 7, 10. This analysis is unmoored from the text of the APA. Section 702 focuses not on a plaintiff ’s motivation for suit, nor the arguments on which he grounds his case, but only on whether another statute expressly or impliedly forbids the relief he seeks. The relief Patchak admittedly seeks—to oust the Government of title to Indian trust land—is identical to that forbidden by the QTA. Con- versely, the Court’s hypothetical suit, alleging that the Bradley Property was causing environmental harm, would not be barred by the QTA. See ante, That is not because such an action asserts a different “grievance,” but because it seeks different relief—abatement of a nuisance rather than the extinguishment of title.2 —————— 2 The majority claims, ante, at 7, n. 3, that this test has “no obvious limits,” but it merely applies the text of (which speaks of “relief,” not “grievances”). In any event, the majority’s hypothetical, ib compares apples to oranges. I do not contend that the APA bars all injunctive relief involving Indian lands, simply other suits—like this one—that seek “to adjudicate a disputed title to real property in which the United States claims an interest.” 28 U.S. C. That Cite as: 567 U. S. (2012) 7 SOTOMAYOR, J., dissenting In any event, the “grievance” Patchak asserts is no different from that asserted in —a case in which we unanimously rejected a plaintiff ’s attempt to avoid the QTA’s restrictions by way of an APA action or the similar device of an officer’s suit.3 That action, like this one, was styled as a suit claiming that the Government’s actions respecting land were “ ‘ “not within [its] statutory pow- ers.” ’ ” Cf. ante, at 10 (“[Patchak] as- serts merely that the Secretary’s decision to take land into trust violates a federal statute”). The relief requested was also identical to that sought here: injunctive relief direct- ing the United States to “ ‘cease and desist from exer- cising privileges of ownership’ ” over the land in question. ; see also App. 38. The only difference that the majority can point to be- tween and this case is that Patchak asserts a weaker interest in the disputed property. But that is no reason to imagine that Congress intended a different outcome. As the majority itself acknowledges, the harm to the United States and tribes when a plaintiff sues to extinguish the Government’s title to Indian trust land is identical “whether or not a plaintiff claims to own the land himself.” Ante, at 12. Yet, if the majority is correct, Congress in- tended the APA’s waiver of immunity to apply to those hypothetical plaintiffs differently. Congress, it suggests, intended to permit anyone to circumvent the QTA’s careful —————— result is entirely consistent with —which stated that the APA “specifically confers no ‘authority to grant relief if any other statute expressly or impliedly forbids the relief which is sought.’ ” 461 U. S, at 286, n. 22 (quoting 5 U.S. C. ). 3 An officer’s suit is an action directly against a federal officer, but was otherwise identical to the kind of APA action at issue here. Com- pare (seeking relief because agency official’s actions were “ ‘ “not within [his] statutory powers” ’ ”), with 5 U.S. C. (“The reviewing court shall hold unlawful and set aside agency action found to be in excess of statutory jurisdiction, authority, or limitations”). 8 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK SOTOMAYOR, J., dissenting limitations and sue to force the Government to relinquish Indian trust lands—anyone, that is, except those with the strongest entitlement to bring such actions: those claiming a personal “right, title, or interest” in the land in question. The majority’s conclusion hinges, therefore, on the doubt- ful premise that Congress intended to waive the Govern- ment’s sovereign immunity wholesale for those like Patchak, who assert an “aesthetic” interest in land, ante, at 1, while retaining the Government’s sovereign immu- nity against those who assert a constitutional interest in land—the deprivation of property without due process of law. This is highly implausible. Unsurprisingly, the majority does not even attempt to explain why Congress would have intended this counterintuitive result. It is no answer to say that the QTA reaches no further than an “ordinary quiet title suit.” Ante, at 11. The action permitted by is not an ordinary quiet title suit. At common law, equity courts “permit[ted] a bill to quiet title to be filed only by a party in possession [of land] against a defendant, who ha[d] been ineffectually seeking to estab- lish a legal title by repeated actions of ejectment.” Wehr- (emphasis added). Section 2409a is broader, requiring neither pre- requisite. Moreover, as the majority tells us, see ante, at 7, an act to quiet title is “universally understood” as a proceeding “to establish a plaintiff ’s title to land.” Black’s Law Dictionary 34 (9th ed. 2009) (emphasis added). But authorizes civil actions in cases in which neither the Government, nor the plaintiff, claims title to the land at issue. See (d) (“The complaint shall set forth the right, title, or interest which the plaintiff claims” (em- phasis added)).4 A plaintiff may file suit under for —————— 4 The majority notes that some States permit a broader class of claims under the rubric of “quiet title,” and points to the “ ‘wide differ- ences in State statutory and decisional law’ on quiet title suits” at the Cite as: 567 U. S. (2012) 9 SOTOMAYOR, J., dissenting instance, when he claims only an easement in land, the right to explore an area for minerals, or some other lesser right or interest. See S. Rep. No. 92–575, at 5. Notwith- standing its colloquial title, therefore, the QTA plainly allows suit in circumstances well beyond “bread-and- butter quiet title actions,” ante, at 3, n. 3.5 The majority attempts to bolster its reading by empha- sizing an unexpected source within : the clause specifying that the United States may be sued “ ‘in a civil action under this section.’ ” Ante, at 11. The majority understands this clause to narrow the QTA’s scope (and its limitations on the Government’s immunity waiver) to quiet title claims only. But “this section” speaks broadly to civil actions “to adjudicate a disputed title to real prop- erty in which the United States claims an interest.” Moreover, this clause is read most straightfor- wardly to serve a far more pedestrian purpose: simply to state that a claimant can file “a civil action under this section”——to adjudicate a disputed title in which the United States claims an interest. Regardless of how one reads the clause, however, it does not alter the APA’s clear command that suits seeking relief forbidden by other statutes are not authorized by the APA. And the QTA forbids the relief sought here: injunctive relief forcing the Government to relinquish title to Indian lands. Even if the majority were correct that the QTA itself reached only as far as ordinary quiet title actions, that —————— time of the Act. Ante, at 8, n. 4. But that substantial variation only illustrates the artificiality of the majority’s claim that the Act only “addresses quiet title actions, as ordinarily conceived.” Ante, at 9, n. 5. 5 I recognize, of course, that the QTA is titled “[a]n Act to permit suits to adjudicate certain real property quiet title actions.” But “the title of a statute cannot limit the plain meaning of [its] text.” 528–529 (1947). As explained above, the substance of Congress’ enactment plainly extends more broadly than quiet title actions, mirroring the scope of the title proposed by the Government. See 10 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK SOTOMAYOR, J., dissenting would establish only that the QTA does not expressly forbid the relief Patchak seeks. The APA, however, does not waive the Government’s sovereign immunity where any other statute “expressly or impliedly forbids the relief which is sought.” 5 U.S. C. (emphasis added). The text and history of the QTA, as well as this Court’s prece- dent, make clear that the United States intended to retain its sovereign immunity from suits to dispossess the Gov- ernment of Indian trust land. Patchak’s suit to oust the Government of such land is therefore, at minimum, im- pliedly forbidden.6 II Three consequences illustrate the difficulties today’s holding will present for courts and the Government. First, it will render the QTA’s limitations easily circumvented. Although those with property claims will remain formally prohibited from bringing APA suits because of savvy plaintiffs and their lawyers can recruit a family member or neighbor to bring suit asserting only an “aes- thetic” interest in the land but seeking an identical prac- tical objective—to divest the Government of title and possession. §(a), (b). Nothing will prevent them from obtaining relief that the QTA was designed to foreclose. Second, the majority’s holding will frustrate the Gov- ernment’s ability to resolve challenges to its fee-to-trust decisions expeditiously. When a plaintiff like Patchak asserts an “aesthetic” or “environmental” concern with a planned use of Indian trust land, he may bring a distinct suit under statutes like the National Environmental Policy Act of 1969 and the Indian Gaming Regulatory Act. Those challenges generally may be brought within the APA’s ordinary 6-year statute of limitations. Suits to —————— 6 Because I conclude that sovereign immunity bars Patchak’s suit, I would not reach the question of whether he has standing. Cite as: 567 U. S. (2012) 11 SOTOMAYOR, J., dissenting contest the Government’s decision to take title to land in trust for Indian tribes, however, have been governed by a different rule. Until today, parties seeking to challenge such decisions had only a 30-day window to seek judi- cial review. (2011); 61 Fed. Reg. 18,082–18,083 (1996). That deadline promoted finality and security—necessary preconditions for the investment and “economic development” that are central goals of the Indian Reorganization Act. Ante, at 16.7 Today’s result will promote the opposite, retarding tribes’ ability to de- velop land until the APA’s 6-year statute of limitations has lapsed.8 Finally, the majority’s rule creates substantial uncer- tainty regarding who exactly is barred from bringing APA claims. The majority leaves unclear, for instance, whether its rule bars from suit only those who “claim any compet- ing interest” in the disputed land in their complaint, ante, at 7, or those who could claim a competing interest, but plead only that the Government’s title claim violates a federal statute. If the former, the majority’s holding would allow Patchak’s challenge to go forward even if he had some personal interest in the Bradley Property, so long as his complaint did not assert it. That result is difficult to square with and Mottaz. If the latter, matters are even more peculiar. Because a shrewd plain- tiff will avoid referencing her own property claim in her —————— 7 Trust status, for instance, is a prerequisite to making lands eligible for various federal incentives and tax credits closely tied to economic development. See, e.g., App. 56. Delayed suits will also inhibit tribes from investing in uses other than gaming that might be less objection- able—like farming or office use. 8 Despite notice of the Government’s intent through an organization with which he was affiliated, Patchak did not challenge the Govern- ment’s fee-to-trust decision even though the organization did. See Michigan Gambling (CADC 2008). Instead, Patchak waited to sue until three years after the Secretary’s intent to acquire the property was published. App. 35, 39. 12 MATCH-E-BE-NASH-SHE-WISH BAND OF POTTAWATOMI INDIANS v. PATCHAK SOTOMAYOR, J., dissenting complaint, the Government may assert sovereign immu- nity only if its detective efforts uncover the plaintiff ’s unstated property claim. Not only does that impose a substantial burden on the Government, but it creates per- verse incentives for private litigants. What if a plain- tiff has a weak claim, or a claim that she does not know about? Did Congress really intend for the availability of APA relief to turn on whether a plaintiff does a better job of overlooking or suppressing her own property interest than the Government does of sleuthing it out? As these observations illustrate, the majority’s rule will impose a substantial burden on the Government and leave an array of uncertainties. Moreover, it will open to suit lands that Congress and the Executive Branch thought the “national public interest” demanded should remain immune from challenge. Congress did not intend either result. * * * For the foregoing reasons, I would hold that the QTA bars the relief Patchak seeks. I respectfully dissent